TH€ 

UNIY6RS1TY  Of  CALIFORNIA 
LIBRARY 


EDEN  VERSUS  WHISTLER 

THE  BARONET  6-  THE  BUTTERFLY 


A    VALENTINE  WITH 
A    VERDICT 


NEW   YORK 

R.   H.   RUSSELL 
1899 


\YL  4 


COPYRIGHT  i8q8 

by 
ROBERT  HOWARD  RUSSELL 


395711 


This  Edition  is  for  saU  in  the 
United  States  of  America  only, 
and  is  not  to  be  imported  into 
countries  signatory  to  the  Berne 
Treaty 


UENVOl 


.    .  At  a  man  ivipeth  a  d'uh — 'wiping 
it  *nd  turning  it  upside  down  /  " 


ABUSE! 


EDEN    VERSUS   WHISTLER 

THE  BARONET  &•  THE  BUTTERFLY 

A    VALENTINE  WITH  A    VERDICT 

BEING 

A  MOST  RARE  AND  FASCINATING  HISTORY,  FROM 
THE  PALACE  OF  THE  COURTS,  WHEREIN  IS  SHOWN, 
WITH  MUCH  WIT  AND  CIRCUMSTANCE,  HOW  THE 
GENTLE  MASTER,  UNSUSPECTING,  WAS  SIGHTED, 
TRACKED,  WAYLAID,  CIRCUMVENTED,  AND  RUN  TO 
EARTH  BY  COMMERCIAL  KNIGHT  OF  UNTIRING 
INDUSTRY ! 

TOGETHER  WITH  THE  AMUSING  INTRODUC 
TION  OF  THE  HIND,  HENCHMAN,  EXPERT 
AND  GO-BETWEEN. 

AND,  FURTHER  ON,  SETTING  FORTH  THE  METHODS, 
DEVICES,  CAJOLERIES  EMPLOYED  FOR  THE  EN 
SNARING,  ENTRAPPING,  BEWILDERING,  AND  FINAL 


CONFUSION  OF  THE  ALL-CONFIDING  SWEET  AND 
SIMPLE  PAINTER. 

CULMINATING  IN  THE  ABRUPT,  INGENIOUS,  AND 
STUPENDOUS  INVENTION  OF  THE  "VALENTINE!"— 
TOGETHER  mTH  ITS  APPLICATION,  AND  MANNER 
OF  USE. 

AND,  IN  THE  RECOUNTING  OF  SUCH  EXCELLENT 
MATTER,  IS  AGAIN  CURIOUSLY  BROUGHT  TO  LIGHT 
THE  CONTINUED  FALL  ACT,  DANGER,  IMMODESTY, 
IMMORALITY,  AND  MONSTROUS  INCONVENIENCE  OF 
SHAMELESS  FRIENDSHIP ! 


Acheve  d'imprimer  le  10  Fevrier   1899 
sur  les  presses  "  VALENTINE  " 

PARIS 


ARGUMENT 

SENT  TO  THE  STOCKS,  BY  BELTED  BRITON,  THAT  HE 
MAI  THERE  BE  PELTED  WITH  UNCLEAN  EGG  Br 
THE  PHILISTINE  OF  THE  MARKET,  IN  HIS  UPRIGHT 
WRATH,  AND  BEHOLD!  — THIS  IS  THE  MAN  WHOM 
THE  NATION  DELIGHTETH  TO  HONOUR  ! 

AND  YET  HE  HATH  DONE  THESE  THINGS,  THIS  MOCKER 
OF  BARONETS! 

AND  THEY  COME  OUT  TO  MEET  HIM,  WITH  HERALDS 
AND  BANNERS,  AND  TRUMPETERS,  FROM  FAIR 
FRANCE  ! 

AND  THE  LAW  OF  THE  LAND  IS  ALTERED— AND 
NEW  STATUTES  ARE  MADE  IN  HIS  HONOUR  ! 

AND  HAMAN  THE  ISLANDER  IS  SHAMED  BEFORE 
THE  PEOPLE— AND  IS  HANGED,  AS  AN  OFFERING  TO 


THE  DISTINGUISHED  ONE! —TO  APPEASE  HIM,  AND 
FOR  HIS  HEARTS  PLEASURE. 

AND  THERE  IS  GREAT  REJOICING!  AND  IT  IS  COM 
MANDED  THAT  A  RECORD  OF  THESE  THINGS  BE 
KEPT  IN  THE  CHRONICLES  OF  THE  COURT. 

AND  IT  IS  GRAVEN  UPON  THE  TABLETS  OF  THE 
CAUSES  CELEBRES—AND  THE  NEW  LAW  IS  ADDED 
TO  THE  CODE  NAPOLEON! 

AND  THE  NAME  THEREOF  IS  FAMOUS  FOREVER  ! 


Those  Confreres  across  the  Channel  who, 
refraining  from  intrusive  demunstration, 
'with  a  pluck  and  delicacy  all  their  CWH, 
"sat  tight"  during  the  struggle,  t/iese 
dtcrecs  of  the  Judges  are  affectionately 
dedicated 


Paris 


Fog 


WHISTLER  has  really  surpassed  himself  in 
the  gentle  art  of  making  enemies.  That  Sir  William 
Eden  should  have  considered  /Tioo  adequate  pay- 

*     J        Gazette, 

ment  for  a  portrait  of  his  wife  was  beyond  doubt  Feb- 28- 
provocative.  But  where  Mr.  Whistler  seems  to  have 
shown  rather  less  than  his  usual  tact  was  in  both 
keeping  Sir  William's  "  valentine  "  and  declining  to 
surrender  his  picture — indeed,  not  only  declining  to 
surrender,  but  availing  himself  of  the  right  of  a 
"  considerable  artist"  to  "efface  the  head  and  preserve 
the  general  arrangement,  in  which  he  intended  to 
place  another  head."  The  questions  which  the 
Court  will  have  to  decide  are  numerous  and  rather 
obscure,  e.g. : 

i.  In  accepting  the  "valentine"  of  ;£ioo,  was 
Mr.  Whistler  entitled  to  regard  this  as  a  kind  of 
"  charitable  contract "  from  which  he  might  legiti- 

2 


mately  consider  himself  released  by  Sir  William's 
conduct  ? 

2.  In  pursuance  of  the  "charitable  contract"  or  in 
its  failure,  is  he  entitled  to  keep  the  picture  ? 

3.  If  so,  is  he  entitled  to  efface  Lady  Eden's  head 
and    to    preserve    the   remainder   of    the   "  general 
arrangement "  as  a  vehicle  for  someone  else's  head  ? 

4.  What  ought  to  be  done  with  the  "  valentine  "  ? 


A  Ray : 


When  the  painting  was  demanded  in  return  for 
D  17  nf  77  the   VaUntinc  (  \ ),   the  sura  was  sent  back  to  this 

practising  "  Patron  "—and  the  picture  wiped  out ! 
Gazette.  The  Baronet  will  not  have  his  money— as  the  'bus 

man  would  not  take  again  his  own  bad  shilling— he  is 

going  in  for  bigger  stakes — 

10,  OOO  FR  A  JVCS  ! 


Official — Extract 

"  FRENCH  Republic.  In  the  name  of  the  French 
People.  The  President  of  the  Civil  Tribunal  of  ist 
Instance  of  the  Department  of  the  Seine,  sitting  at 
the  Palace  of  Justice  at  Paris,  has  pronounced,  in 
public  audience,  the  interlocutory  order  whereof  the 
tenour  follows:  In  the  year  1894,  on  the  4th 
December,  Before  us,  President  of  the  Civil 
Tribunal  of  the  Seine,  sitting  for  interlocutory 
applications,  in  the  ordinary  chamber  for  inter 
locutory  applications,  assisted  by  our  Registrar,  at 
one  o'clock  in  the  afternoon,  has  appeared  Me  Mar- 
mottant,  Solicitor  of  the  Tribunal  and  for  Sir 
William  Eden,  residing  at  Windlestone,  Ferry  Hill, 
County  of  Durham  (England).  Who  has  stated  to  us 
that,  at  the  request  of  the  said  Sir  William  Eden,  by 
writ  of  Baudin,  Process  Server,  dated  Paris  the  24th 
November,  1894,  registered,  he  has  caused  a  summons 


to  be  served  on  Mr.  J.  MacNeill  Whistler,  artist 
and  painter,  residing  at  no  Rue  du  Bac,  Paris,  to 
appear  before  us  on  this  day,  at  this  place,  and  at 
this  hour,  for  the  following  purpose :  Whereas  the 
said  Sir  William  Eden  had  ordered  of  the  said  Mr. 
Whistler  a  portrait  of  Lady  Eden,  his  wife,  at  the  price 
of  one  hundred  and  five  pounds  sterling,  or  in  French 
money  the  sum  of  2625  francs,  which  had  been  paid 
^in  advance.  .  .  ." 


Indiscretions 


j\  CORRESPONDENT  of  the  Herald  called  yester 
day  on  Sir  William  Eden,  and  received  the  following 
statement  :  f 


"  Last  winter,   when  I  was  in  Paris,  I  spoke  to    < 
Mr.  George  Moore,  the  art  critic,  and  said   I  would 
like  to  have  a  sketch  made    and  would  pay  about 
100  guineas  for  the  same. 

"  The  picture  was  completed,  and  I  sent  100 
guineas,  supposing  that  was  all  that  was  required  — 
the  portrait,  in  size,  was  only  about  as  large  as  a  sheet 
of  note  paper. 

"  The  receipt  of  the  cheque  was  acknowledged  and 
the  same  cashed.  There  was  nothing  said  about 
demanding  more  money.  As  I  sent  the  cheque  on 
St.  Valentine's  Day  I  called  it,  jocularly,  a  valentine, 
and  in  acknowledging  its  receipt  Mr.  Whistler  made 
use  of  the  same  word. 


"  On  my  return  from  India  I  learned  that  the 
picture  had  been  exhibited  and  not  delivered.  I 
asked  for  delivery  and  was  refused." 

Mr.  Moore7  who  was  present  during  the  inter 
view,  stated  that,  in  his  opinion  as  an  art  expert,  the 
picture  was  very  well  paid  for  at  100  guineas. 

Sir  William  expressed  his  surprise  at  the  way  in 
which  he  had  been  treated,  and  is  very  clear  that  no 
fixed  price  was  arranged  for  in  any  of  the  negotiations 
other  than  the  general  estimate  of  100  guineas  to  a 
maximum  of  150  guineas.  He  states  further  that  he 
offered  to  pay  more  when  he  saw  Mr.  Whistler  was 
discontented,  but  was  told  that  the  offer  would  not  be 
entertained. 


The  Baronet  Js  Indiscretions 


To  the  Editor  of  the  Patt  Mall  Gazette. 

, — You  will  have  seen,  in  the  papers,  that  the 
Baronet  has  brought  out  his  basket,  and  that  the 
scavenging  interviewer  has  not  left  him  a  rag  !— 

It  is  curious,  and,  in  an  unchristian  way,  pleasant, 
to  note  how  a  thrifty  Maecenas,  who,  through  life, 
surely  never  gave  away  anything,  now,  at  the  sweet 
singing  of  the  insinuating  Secretary  bird,  unreserv 
edly  and  ungrudgingly,  gives  away  .  .  .  himself  ! — 

Mr.  Moore  also  "  was  present " — and  of  course  was 
tossed  in  with  the  linen.  In  the  warmth  of  the 
moment,  I  notice  that  his  patron  palmed  him  off  as 
an  "  expert  "  (sic).  Expert  Moore  ! 

Expert  Moore,  then,  was  made  to  lift  up  his  voice 
and  curse  the  work  of  the  one,  in  praising  whom,  for 
years  past,  he  has  sold  reams  of  copy,  and  made  for 


himself  a  spurious  reputation  as  advanced  connoisseur 
and  cultured  critic. 

Between  them,  these  two  profound  conspirators 
establish  the  worthlessness  of  the  picture — to  obtain 
possession  of  which  the  ardent  sportsman  has  come 
into  Court — or,  for  the  loss  of  which,  he  is  asking 
ten  thousand  francs  ! 

In  his  plaint,  this  honest  gentleman  swears  that 
the  picture  was  "  paid  for  in  advance,"  but  don't  you 
believe  it;  he  now  says  to  the  irresistible  taker  of 
notes,  "  the  picture  was  completed,  and  I  sent  the  100 
guineas ! "  Doubly  careless ;  for,  as  a  silly  matter  of 
fact,  at  the  moment  of  perpetrating  his  "  confidence 
trick,"  this  Bunko  Baronet  handed  me  the  mysterious 
envelope,  a  orule  pourpoint,  in  the  studio,  begging 
me  not  to  open  it  until  I  should  have  reached  my  own 
house,  and  he  was  safely  on  his  way  to  South  Africa. 

In  the  Court  again,  our  "  Sir  Eden,"  as  they 
delight  in  calling  him  here,  declares  that  the  portrait 
was  "commissioned  at  one  hundred  guineas,"  and 
here,  in  his  confession — tardy,  but  complete — he  is 
very  clear  that  no  fixed  price  was  arranged  for,  in  any 
of  the  negotiations,  other  than  the  general  estimate 
of  100  to  a  maximum  of  150  guineas.  Awkward 
this! 

And  there  is  more  of  it — sad,  it  seems  to  me  in  its 
shifty  forgetfulness  and  inability  boldly  to  do  evil. 


Also  it  would  go  to  show  that  a  few  ancestors 
seizing  upon  odd  droves  of  oxen,  as  set  forth  in 
Burke,  is  but  poor  backing  for  a  modern  Baronet  in 
his  clumsy  commercial  struggles. 

For  the  great  Napoleon  was  perhaps  partly  right ! 
"  Grattez  le  Barronet,  et  vous  trouvez — (quelquefois) 
le  Boutiquier  " ! 


A  Champion 


To  the  Editor  of  the  Pall  Mall  Gazette. 

, — I  have  just  read  a  letter  in  this  evening's  Pall 
Mall  from  J.  McNeill  Whistler  commenting  upon  the 
action  which  Sir  William  Eden  very  rightly  brought 
against  him.  For  vulgarity,  insolence,  and  cowardice  March8-l89s- 
combined,  the  composition  would  be  hard  to  beat,  and 
the  most  appropriate  answer  to  it  would  be  the 
argumentum  baculinum,  which  Mr.  Whistler  knows 
is  out  of  date,  or  he  would  not  have  dared  to  write  it. 
In  a  cloud  of  abuse,  worthy  of  O'Connell's  old  apple- 
woman,  without  a  shred  of  argument,  he  attempts  to 
obscure  a  very  simple  issue. 

Mr.  Whistler  agreed  to  paint  a  small  picture  of 
Lady  Eden  for  a  sum  of  money  arranged  between 
him  and  Mr.  Moore.  The  picture  was  painted  and 
the  money  paid,  but  instead  of  completing  the  trans- 


action  by  delivery  of  the  portrait,  which  any  gentle 
man  would  have  done,  this  "  considerable  artist !  " 
defaces  the  picture,  and  invents  a  code  of  morality 
for  himself,  which,  if  carefully  followed  up,  will  some 
day  provide  him  with  lodgings  at  the  public  expense. 
If  Mr.  Whistler  had  happened  to  be  a  tailor,  and  a 
customer  had  ordered  a  pair  of  trousers  from  him 
and  paid  for  them  in  advance,  he  (the  customer) 
would  have  expected  those  trousers  to  have  been  sent 
to  him  in  due  course.  But  if,  after  repeated  appli 
cations,  the  breeks  failed  to  appear  because  Mr. 
Whistler  had  cut  a  large  hole  in  them,  he  would 
have  obtained  money  under  false  pretences,  and  the 
consequences  would  have  been  unpleasant  to  him. 
Where  is  the  difference?  Mr.  Whistler  the  con 
siderable  artist,  and  Mr.  Whistler  the  tailor,  are 
both  tradesmen,  and  what  is  sauce  for  the  tailor's 
goose  is  sauce  for  the  artist's  gander. 
Yours,  &c., 

FEED.  MORTON  EDEN. 

63  WARWICK  ROAD,  EARL'S  COURT. 


Encountered 


To  the  Editor  of  the  Pall  Mall  Gazette. 

CjIR, — We  know  the  Baronet's  Valentine  —  you 
present  to  us  now,  comme  de  juste,  I  suppose,  the 
Orson  of  the  Clan.  **£? 

See  how  he  roars  ! — far  from  the  farmer's  wife, 
and  her  carving  knife — adown  the  road  of  "Warwick ! 

As  an  authority,  in  theory,  on  courtesy  and  the 
gentle  arts,  Orson  is  new — but  in  practice,  I  fancy  we 
still  recognize  him  of  the  club,  as  of  old. 

About  tailors  he  may  be  right.  The  very  clear 
headed  Sir  William  would  know  of  course — and,  from 
the  determined  attitude  toward  them,  taken  by  this 
fresh  and  sturdy  member  of  that  pleasant  family,  it  is 
clear  that  the  poor  devil  North  country  snip  has  but 
slender  chance  with  the  Baronial  breeches.  Also,  I 
now  understand  the  course  pursued  with  me.  Indeed, 


it  is  well  known,  among  my  distinguished  confreres 
that  I  am  not  the  only  painter  upon  whom  our 
summary  Patron  has  practised  the  swift  and  minute 
methods,  unerring  with  his  tailor. 

Surely  his  courageous  sentiment  is  now  famous : 
"  I  know/'  7io  said,  as  he  stood  in  front  of  the  easel, 
11 1  know  that  I  have  there  a  beautiful  little  picture, 

but  that  is  my  luck  !  and  a  man  is  a  d d  fool  who 

gives  a  larger  price  for  a  thing  that  he  can  have  for 
a  smaller  one  !  " 

This  to  me,  in  my  own  studio,  on  the  occasion  of  his 
visit,  the  day  after  the  Valentine,  when,  pale  and  in  the 
brown  boots  of  travel,  and  doubting  already  the 
consequences  of  his  first  blunder,  he  floundered  into 
the  further  one  of  attempting  to  patch  up  the  matter 
by  an  offer  of  fifty  guineas  more  ! — while  I  looked  on 
unkindly,  with  the  amused  expression  of  one  who  saw 
through  the  Jockey,  tinged  with  the  decorous  sense  of 
condolence  for  the  Colonel  and  the  Baronet  who  had  got 
himself  into  such  an  awful  fix ! 

Pray,  Sir,  make  my  compliments  to  the  new  Eden 
— and  convey  to  that  gallant  kinsman,  my  slightly 
wearied  acknowledgments  of  his  doughtiness,  and  his 
knightly  scorn  of  tailors — than  nine  of  whom,  he  is 
mightier — and,  kind  Sir,  reason  then,  with  him. 

Why  should  he  burden  himself  with  this  "  biiculi- 
num  "  cumbrance,  since  he  proposes  not  to  use  it  ?  Why 


prance  and  brandish  about,  and  call  aloud,  since  he 
proclaims  that  its  exercise  has  fallen  into  desuetude — 
its  custom  is  obsolete — gone  by,  and  "  out  of  date  "  ? 
Is  this  indeed  so?  ...  Let  him  ask  Mr.  Moore's 
brother. 


And  so  no  more  of  bold  buccaneering  "baculinum  Fred.  ' 
Of  sweet  disposition,  ait  fond,  and  soft  heart  in  belicose 
back,  he  has  felt  the  awkwardness  of  his  old-fashioned 
"  argumentum,"  and,  with  velvet  hand  beneath  the  iron 
glove,  has  peaceably  restored  it  to  the  family  bric-a-brac  of 
past  prowess,  in  the  tent — to  be  brought  forth  .  .  .  never 
again. 


COURT    OF    APPEAL 

PARIS 

FIRST  CHAMBER 

BEFORE 

MONSIEUR  LE  PREMIER  PRESIDENT 

DEC.  1897 

Whistler  versus  Eden 

MAITRE  BEURDELEY'S  SPEECH. 

THE  PRESIDENT  :   Will  you  explain  the  object  of 
your  suit  ? 

ME.  BEURDELEY  :  "  It  is  this.  The  Civil  Tribunal 
of  the  Seine  gave  judgment  against  an  artist  for  not 
having  delivered  a  picture  ordered  from  him.  The 
Tribunal  ruled  that  the  artist  was  to  refund  the  price 
of  the  picture,  to  hand  over  the  picture  itself,  and  to 
pay  damages  with  interest  thereupon.  We  appeal 
against  this  triple  penalty  as  excessive,  and  we  ask 
the  Court  to  set  aside  the  judgment.  This  is  the 
object  of  our  suit. 

I  A 


THE  PRESIDENT:  Do  you  offer  to  give  up  the 
picture  ? 

ME.  BEURDELEY  :  On  the  contrary,  we  protest 
against  the  decision  by  which  we  ore  condemned  to 
refund  the  price  and  give  up  the  picture — a  picture 
which  has  been  modified,  and  which  is  at  present  an 
incomplete  expression  of  the  artist's  idea,  cannot, 
under  the  conditions,  be  assigned  to  the  person  who 
originally  commissioned  it.  I  will  now  explain  the 
relations  between  my  client,  Mr.  Whistler,  and 
Sir  William  Eden. 

Mr.  Whistler's  reputation  is,  happily,  such  that  he 
needs  no  eulogy  from  me.  Long  before  this  suit  was 
instituted  ho  had  established  his  claim  to  the  title  of 
a  perfect  gentleman  and  a  consummate  artist.  lie 
is  well  known  among  us  by  the  works  he  has  exhibited 
in  the  Chainp  do  Mars,  and  by  the  more  permanent 
exhibition  of  his  art  in  the  Musee  dti  Luxembourg, 
where  one  of  his  greatest  works,  the  "  Portrait  of  his 
Mother/'  bears  brilliant  testimony  to  his  powers. 

Mr.  Whistler,  who  is  an  officer  of  the  Legion  of 
Honour,  has  achieved  a  great  reputation  in  France, 
as  well  as  in  England  and  America.  Besides  the 
portrait  of  his  mother  in  the  Luxembourg,  the  "  Miss 
Alexander,"  the  "Yellow  Buskin,"  the  "Sarasate" 
(which  is  a  masterpiece),  and  the  "  Thomas  Carlyle  " 
are  known  to  all ;  and  he  is  further  famous  by  other 


works  much  discussed  by  the  critics,  the  mere  titles 
of  which  excited  a  good  deal  of  public  attention. 
Some  critic  has  said  that  Mr.  Whistler  introduced 
music  into  painting.  It  is  true  that  on  several 
occasions  he  christened  his  pictures  "  Symphonies  "  or 
"  Harmonies." 

Mr.  Whistler  is  also  known  as  the  hero  of  a  famous 
lawsuit,  already  alluded  to  by  our  opponents,  in 
which  the  point  at  issue  was  the  attack  made  upon 
him  by  the  celebrated  critic,  Mr.  Ruskin.  .  .  . 

Mr.  Whistler,  who  often  lays  aside  the  brush  for 
the  pen,  published  a  book  which  was  widely  read  in 
England,  and  has  remained  famous  on  account  of  the 
discussions  to  which  the  lawsuit  gave  rise.  He 
collected  all  the  criticisms  directed  against  him  on 
the  one  hand,  and  on  the  other,  the  answers  provoked 
from  him  by  those  criticisms.  To  this  famous  volume 
he  gave  the  title,  The  Gentle  Art  of  Making  Enemies. 

How  were  the  relations  initiated  between  Mr. 
Whistler  and  Sir  William  Eden,  with  whose  merits 
my  opponent  will  make  you  acquainted,  and  whose 
character  will  reveal  itself  in  the  course  of  this  suit  ? 
Sir  William  Eden  is  apparently  a  rich  baronet,  who, 
while  devoting  part  of  his  large  fortune  to  the  enjoy 
ment  of  those  sports  so  dear  to  Englishmen,  would 
appear  also  to  have  a  taste  for  pictures.  He  desired 
to  have  a  portrait  of  his  wife  by  Whistler.  He  had 
3 


already  given  commissions  of  a  like  nature  to  other 
famous  painters,  such  as  M.  Blanche  and  Mr.  Swan, 
who  had  reproduced  her  ladyship's  features  on  janvas 
or  panel,  as  Mr.  Whistler  was  afterwards  induced 
to  do. 

Anxious  to  give  this  commission  to  the  artist,  Sir 
William,  who  was  quite  unknown  to  Mr.  Whistler,  at 
once  began  his  campaign  by  writing  to  the  representa 
tive  of  the  firm  of  Goupil  in  London,  and  asking 
what  Mr.  Whistler's  price  would  be  for  a  little  por 
trait,  a  head  only,  of  Lady  Eden.  And  here,  gentle 
men,  we  have  Sir  William's  acknowledgment  of  the 
communication  he  received  from  Goupil's : 

AIX-LES-BAINS,  June  5,  1893. 
"MR.  - 

"Thank  you -tor  your  letter  about  Mr.  Whistler's  charges  for 
"  a  portrait  of  Lady  Eden. 

"I  fully  recognise  and  appreciate  Mr.  Whistler's  merits,  but  I 
1 '  hoped  his  charge  for  a  head  only  would  have  been  much  less  than 
"  j£525-  I  cannot  therefore  at  that  price  think  of  it,  especially  in 
"  face  of  my  already  large  expenditure  in  that  line  with  Mr.  Swan. 
"  If  you  would  kindly  send  me  Mr.  Whistler's  address  in  Paris  / 
' '  would  try  and  call  on  him  on  my  -way  through. 
1 '  Yours  truly, 

"WILLIAM  EDEN. 

"  P.S.  Please  write  to  Hotel  des  Trois  Couronnes." 

Sir  William,  then,  considered  500  guineas  too  high 
a  price  for  a  simple  head  of  Lady  Eden,  but  he  still 
4 


did  not  renounce  all  hope  of  obtaining  satisfaction  on 
more  favourable  terms  from  Mr.  Whistler  himself. 
It  was  then  that  he  brought  into  play  a  new  per 
sonage.      He   applied,   in   a   sufficiently  adroit   and 
insinuating  fashion,  to  a  common  friend,  Mr.  George 
Moore,  a  critic.     This  critic  put  himself  into  relation     -jwe  know  quite 
with  Whistler,  saying  :  « It  is  for  a  friend  of  mine,   Sfi»1F.  «S5§! 
on  the  one  hand,  and  on  the  other  you  will  have  to  askl«J  y°«r  usual 

*  considerations    and 

paint  a  very  lovely  and  very  elegant  woman,  whose  S^o?  a 'iSte* 

colour,  the  slightest 

portrait   you   will   be   delighted   to   undertake."      I   SSbftSfiJ 

.    i      .  .  ,,  ,     from  a  hundred  to  a 

wish  to  say  at  once,  in  answer   to  a  fear   expressed  hundred  and  fifty 

J  pounds 

by  my  opponent,  that  Lady  Eden  is  absolutely  without 
reproach  in  the  matter.  "Under  the  circumstances," 
said  Mr.  Moore,  "  I  think  you  might  make  very  liberal 
concessions." 

In  reply  to  a  note  from  Sir  William,  requesting 
a  final  statement  of  price,  Mr.  Whistler  sent  a 
letter  you  will  fully  appreciate.  It  shows  that,  in 
spite  of  the  figures  just  mentioned,  this  suit  is  not 
based  on  a  question  of  money.  The  quarrel  between 
Sir  William  Eden  and  Mr.  Whistler  rests  on  a  very 
different  issue. 

This,  then,  is  Mr.  Whistler's  letter,  gentlemen,  the 
letter  which  embodies  his  contract — that  contract 
which  he  has  carried  out,  and  which  has  given  rise  to 
the  present  suit.  Sir  William  Eden  had  been  intro 
duced  to  Mr.  Whistler ;  they  had  met  and  had 
5 


discussed  the  subject  of  the  portrait,  and  Mr.  Whistler 
wrote  as  follows  on  January  6,  1894  : 

January  6,  1894. 
*  Of  course  he       DEAR   SIR  WILLIAM  EDEN*— Your  letter  has   only  just  been 

IVCLS  ivell  posted  in 

ait  this    by    his   handed  to  me,  but  this  may  still,  perhaps,  reach  you  in  the  after- 
•ajanted  'it  in  -writ-    noon.     It  is  quite  understood  as  to  the  little  painting,  and  I  think 

ing;  did  the 

Baronet.  there  can  be  no  difficulty  about  the  sum.  The  only  really  interesting 

point  is  that  I   should  be  able  to  produce  the  charming  picture, 

that   efrecT"1— Sfor    which,  with  the  aid  of  Lady  Eden,  ought  to  be  expected.    Once 

t ne'^houg hue's s    undertaken,  however  slight,  for  me,  one  work  is  as  important  as 

kind    feeling',    and 

exquisite  taste  of   another,  and  even  more  so,  as  Calmo  said.     As  for  the  amount, 
wls  kept- "uchfwas    Moore,  I  fancy,  spoke  of  one  hundred  to  one  hundred  and  fifty 

the    guileless   faith 

in  which  I  met  my     pounds. 

sportsman's     over- 

tures  I  So  that  I  am 

S'Sf  i°,S? "he       What  was  the  meaning  of  this  ?    We  shall  do  well 

distracted   text,  as 

foundfarlSS5Si  to  consider  this  letter  carefully,  in  order  to  appreciate 
tra™siat?oen!FreanS  its  tone  and  its  meaning  to  the  full.     Whistler  says  . 

w  "  o  " 

b<  "Having  on  my  part  made  certain  concessions,  I  do 
.  not  think  any  difficulties  can  now  arise  between  us,  and 
we  shall  be  quite  agreed  as  to  price.  As  regards  the 
importance  of  the  work,  you  need  not  trouble  yourself 
whether  I  shall  paint  a  head  or  a  full-length.  Don't 
ask  whether  it  is  to  be  a  sketch  or  a  finished  picture. 
Both  are  equally  important  to  the  artist.  When  an 
artist  undertakes  a  work,  he  elaborates  it  till  he  him 
self  is  satisfied  with  it." 

As  to  the  price,  100  to  150  guineas  was  the  sum 
mentioned   in  conversation    betwen  Mr.   Moore  and 
Sir  William  Eden.     To  put  my  interpretation  of  this 
6 


letter  beyond  a  doubt,  allow  me  to  read  it  over  to  you 
again,  and  you  will  see  that  I  have  translated  it 
accurately. 

[Me.  Beurdeley  here  read  the  letter  again.] 

You  see,  gentlemen,  that  it  was  now  a  question 
of  ;£ioo  to  ^150,  instead  of  the  500  guineas  asked 
at  first  for  a  head.  One  hundred  guineas  is  the  sum 
we  shall  have  to  discuss  presently.  It  represents 
^105,  or  2625  francs. 

I  was  right,  then,  in  saying  that  money  was  not  Mr. 
Whistler's  object  in  this  matter.  You  will  now  see 
how  Mr.  Whistler's  generous  treatment  of  Sir  William 
and  Lady  Eden  was  rewarded. 

He  set  to  work,  and  accomplished  a  task  you  can 
judge  of  but  imperfectly  from  the  picture  I  now  place 
before  you,  in  which  a  new  face  and  a  new  ensemble 
have  taken  the  place  of  the  originals.  Still,  I  think 
you  will  recognise  even  now  the  wonderful  harmony 
of  the  arrangement  and  the  very  individual  art  dis 
played  in  the  treatment — an  art  which  shows  itself  in 
the  setting  of  an  aristocratic  woman,  whose  distinction 
may  be  divined  even  in  the  unfinished  work,  among 
surroundings  perfectly  appropriate  to  her. 

When  the  portrait  was  all  but  finished,  on  February 
14,  1894,  Mr.  Whistler  received  a  visit  from  Sir 
William  Eden.  It  will  be  necessary  to  call  particular 
attention  to  this  date,  and  its  special  significance  in 


J>#aruurr  2.4  a*  i/ut 
2/ujDHnt  ii  »  iaft  tn«n-tin  to. 


tnr  4. 


v.  -ufiw 
uwj!tti 
v.  t  tm  1)?   VJ 


ttf 


i»rutaau»ail. 


<*v?n«i4»atu  irtnw  wautit  it  v& 


*wiii*r 


2U» 


\       •:.;,•.!  i     ,-. 


{J:  v    :,-,i 


..........      .  ,:  ;  -.+,.   .- 

k*  Iady 


A  -Vv 


T-.£--: 

.>      ^>     -     -^         ^ 


! 


^  ^« 

^<       -  .  .  -<N    > 


As  he  sat  on  the  sofa,  day 

by  day.  watching  the  little 

panel  grow,  from  the  mere 


became,  was  the  friendly 


,  suapprc- 

elation,  without  exposing  the 

3   '" 


nSsf-weuTNof7"13   '" 
••  i  ha^e  joscakej'ed°hinrosnce. 

Now  how  shall  I  do  hi 


England.  February  14  is  the  festival  of  St.  Valentine. 
In  England  it  is  the  custom  on  this  day  to  offer  little 
presents,  to  exchange  little  compliments,  accompanied 
sometimes  by  a  flower,  a  bouquet,  a  bit  of  coloured 
pasteboard,  a  sort  of  visiting  card  ;  sometimes  by  a 
more  costly  offering,  such  as  a  diamond  ornament,  a 
jewel,  or  even  a  sum  of  money.  This  ancient  tradition 
still  obtains  across  the  Channel,  and  I  have  among 
my  documents  some  samples  of  old-fashioned  and  also 
of  contemporary  valentines.  They  consist  chiefly  of 
sheets  of  paper  with  pictures,  bearing  some  such 
inscription  as  :  "I  send  you  this  with  my  love  "  :  or 
of  cards,  with  legends  such  as  this  :  "  My  Valentine, 
I  give  you  my  life  ;  give  me  your  love." 

On  St.  Valentine's  Day,  then,  the  day  proper  to 
the  interchange  of  presents  between  friends  and 
lovers,  Mr.  Whistler  received  a  visit  from  his  new 
friend,  Sir  William  Eden.  Sir  William  saw  the  artist 

,  ..  .,  ,  i    •          i       //  rm 

at  work  on  the  picture,  and  exclaimed  :  "The  portrait 

* 

is  charming  ;  it  is  more  delightful  every  time  I  see  it. 
l  am  perfectly  satisfied."  On  taking  leave,  he  informed 
Mr.  Whistler  that  he  was  about  to  start  for  India  on 
a  sporting  tour,  and,  taking  an  envelope  from  his 
pocket,  he  handed  it  to  Mr.  Whistler,  saying:  "  Here 

i         J        o 

is  Si  valentine  for  you.     Look  at  it  presently,  after  I 
ve  g0116-     Don't  bother  about  it  just  now.      When 
Sir  WiUiam  had  left,  Mr.  Whistler  opened  the  letter. 


VALENTINE. 

ie  spaoprtlof 
opem^ 

pocket,  and,  in  a  burst  of 

English  heartiness  :"  There 

is  your  valentine  I  "   And, 

with  swift  precaution,    "Don't  open  it  until  you  get  home  I"     In  point 

of  fact  until  I  get  clean  away—  and  off  to  South  Africa  ! 


It  contained  a  cheque  for  100  guineas,  the  minimum 
mentioned  in  the  preliminary  negotiations. 

Gentlemen,  I  do  not  for  a  moment  dispute  that, 
taking  into  account-  the  terms  of  the  letter  I  have 
twice  read  to  you,  Mr.  Whistler  was  morally  bound 
to  accept  the  sum  of  150  guineas,  no  matter  how 
much  care  he  bestowed  on  the  portrait,  no  matter  how 
perfect  a  work  of  art  he  made  it.  A  maximum  had 
been  agreed  upon  and  also  a  minimum.  But,  without 
looking  at  the  question  from  a  strictly  legal  point  of 
view,  the  artist  certainly  thought  that,  by  all  the 
laws  of  courtesy  at  least,  he  himself  was  the  person 
best  fitted  to  determine  the  mean  between  the 
maximum  and  minimum  —  that  he,  who  knew  as 
none  other  could  the  amount  of  skill,  knowledge, 
and  artistic  merit  that  had  gone  to  the  produc 
tion  of  the  work,  might  reasonably  be  allowed  to 
-  or  quc  se  passait-  decide  whether  he  should  ask  the  maximum,  the 

il  ?—  Sir  William 

fonne'asffecstlfeuse  minimum,  or  some  intermediate  price.  Now,  what 
d°uneles  fei'sfetd  ^ia(^  ac^ually  happened  ?  Sir  William,  under  cover  of  a 
b^emen^dSsee?"  friendly  compliment,  a  graceful  little  courtesy,  had 

glissaitle  minimum, 

slipped  the  minimum  into  his  hand  in  the  cunning  guise 


ce  1'ceuvre  et  qui  /»  7  .  ,.  ,  „        , 

avait  appiaudi  aux    of  a  fM&nftfM,   arrogating  to  himself  the   right   of 

merites  de  1'artiste, 

r'Sr^'cduTd.    deciding  the  price  of  the  work  by  which  he  is  to  profit  ! 
^T'  Whistler  naturally  said  :  "  I  have  been  tricked  ! 


I  have  been  dealing,  not  with  a  friend,  not  with  a 

mafs  ;\  un  aigre- 

gentleman,  but  with  a  sharper.     He  thinks  he  has 
9 


been  very  cute,  but  I  will  give  him  a  lesson  in  cute- 
ness  !  He  brings  me  a  valentine ;  I  accept  it,  by  all 
means.  A  valentine  is  a  present,  a  trifle  offered  in 
token  of  friendship.  I  will  take  it  as  such,  and  we 
shall  see  what  happens !  "  Such,  gentlemen,  was  the 
idea  by  which  Mr.  Whistler  was  guided,  when,  on  the 
same  day,  February  14,  1894,  he  addressed  the 
following  letter  to  Sir  William  Eden.  Before  reading 
the  letter  to  you,  however,  let  me  read  you  the  note 
enclosed  with  the  cheque  for  100  guineas  : 

4,  RUE  DE  PRESBOURG,  PARIS, 

February  14,  1894. 

DEAR  MR.  WHISTLER — Herewith  your  valentine — cheque  value 
one  hundred  guineas.  The  picture  will  always  be  of  inestimable 
value  to  me,  and  will  be  handed  down  as  an  heirloom  as  long  as 
heirlooms  last ! 

I  shall  always  look  with  pleasure  to  the  painting  of  it — and, 
with  thanks,  remain 

Yours  sincerely, 

WILLIAM  EDEN. 

Mr.  Whistler  laid  aside  his  brush,  seized  his  pen, 
and  wrote  as  follows : 

no,  RUE  DU  BAG,  PARIS, 

February  14. 

MY  DEAR  SIR  WILLIAM— I  have  your  valentine.  You  really 
are  magnificent ! — and  have  scored  all  round. 

I  can  only  hope  that  the  little  picture  will  prove  even  slightly 
worthy  of  all  of  us,  and  I  rely  on  Lady  Eden's  amiable  promise 

10 


to  let  me  add  the  few  last  touches  we  know  of.    She  has  been  so 
courageous  and  kind  all  along  in  doing  her  part. 
With  best  wishes  again  for  your  journey, 

Very  faithfully, 

J.  MCNEILL  WHISTLER. 

Gentlemen,  you  will  understand  the  true  character 
of  this  reply.  It  was  certainly  ironical,  as  the  scene 
which  took  place  on  the  following  day  proved.  Sir 
William,  not  very  well  pleased  with  the  letter,  went 
to  the  painter's  studio,  and  a  scene  took  place,  as  to 
the  general  drift  of  which  there  has  been  no  dispute, 
though  some  of  the  details  are  contested.  Our 
account  of  the  interview  was  corrected  by  our 
opponent  as  follows  :  Mr.  Whistler  would  not  receive 
Sir  William  Eden ;  he  merely  said,  "  You  are  mag 
nificent,"  repeating  the  phrase  several  times. 

As  a  fact,  gentlemen,  the  interview  was  not  so  con-       VAPRES 
cise  as  all  this.     Mrc  Whistler  received  Sir  William  E.  -ihave received 

a  letter  that  I 

the  next  day,  February  15,  at  the  door  of  his  studio.       standt-under~ 
Sir  William  spoke  first,  saying:  "  I  have  received  a       others6.™*11* 

E.  "A  very  rude 

letter  from  you  that  I  don't  understand,  a  very  rude  H,  ^"mpossibie- 

,  T   .  .         -  I  never  write 

letter — what  do  you  mean  by  *  I  have  received  your  £  *«j-;  don.t 
valentine '  ?  " — "  You  send  me  a  valentine  :  I  acknow-   /^  "nThesreade 

those  who  pass 

ledge  it  politely."—"  I  consider  your  letter  insulting."       SySgSnd. 
Whereupon  Mr.  Whistler  begged  to  offer  him  every  E.  ty<£ti£S&- 

ten  this:  'My 

satisfaction,    and  placed  himself  entirely  at  his  dis-       ££%£? 
posal,  but  Sir  William  remembered  that  his  journey  }y  ^^l. 

you  mean — 
valuation,  ha  I 
ha !  is  your 

accident  I— You   send  me  your   valentine ;    I    send   you   my  graceful 
acknowledgment." 

E.  "  But  you  say  .  '  You  really  are  magnificent' — " 
W.  "Weil,  are  you  not?" 

E.  "  'And  you  have  scored  all  round'— I  had  no  desire  to  score. 
W .  "  But  as  a  sportsman,  my  dear  Sir  William,  that's  your  luck  !  " 
E.  You  seem  to  wish  to  insinuate,  sir,  that  I  have  been  mean  in  my  dealing 


with  you.    If  you  tear  up  that  cheque  I  will  give  you  this  one  tor  one 
hundred  and  fifty  guineas.' 
IV.  "Put  up  your 


to  India  was  immediate.  Mr.  Whistler  said  "he 
was  not  g°ing>  an(*  ne  would  wait  for  him."  Sir 
William,  however,  began  to  argue  about  the  100  or 

11.  "Well,  I  know 

that  the  picture  .,  -.  miT-noac 
is  a  beautiful  I  5°  gUineaS. 
one,  and  that  I 

plucky  inBut  This  was  how  matters  stood  down  to  the  time  when 
Mr.  Whistler  exhibited  the  picture  at  the  Salon  of 
tne  Champ  de  Mars  in  1894.  And  here  I  may  be 


'«<?•  /  allowed  to  explain  the  conditions  under  which  it  was 
exhibited. 

The  picture  had,  of  course,  never  left  Mr.  Whistler's 
studio,  for  the  day  after  the  interview  Sir  William 
Eden  went  away  to  shoot  in  India,  only  returning  at 
the  end  of  the  year.  It  was  Mr.  Whistler  himself, 
therefore,  who  exhibited  the  picture,  together  with 
some  other  works  ;  it  was  he  who  sent  it  to  the 
Champ  de  Mars,  he  who  had  it  fetched  away,  and  he 
who  reinstalled  it  in  his  studio. 

The  portrait  figured  in  the  catalogue  as  No.  1187, 
"  Brown  and  Gold.  Portrait  of  Lady  E.  .  .  ." 

Not  until  the  end  of  1894,  gentlemen,  as  I  have 
said,  did  Sir  William  Eden  return  from  India.  He 
then  sent  a  summons  to  Mr.  Whistler,  demanding 
the  delivery  of  the  picture.  I  have  the  summons 
here.  It  will  be  well,  taking  into  account  the  pro 
ceedings  that  followed,  to  here  explain  the  claim  put 
forward  by  Sir  William  Eden. 

Sir  William,  then,  summoned  Mr.  Whistler,  of  no 
12 


Rue  du  Bac :  "To  give  up  to  the  claimant,  within 
twenty-four  hours,  the  portrait  of  his  wife,  Lady 
Eden,  ordered  by  him,  and  paid  for  at  a  price  of 
^105,  or  in  French  money  2625  francs,  as  can  be 
proved  ;  and  the  claimant  declares  that,  in  default  of 
such  immediate  delivery,  he  shall  take  such  proceed 
ings  as  may  be  necessary." 

The  next  day  Mr.  Whistler — acting  through  his 
solicitor  in  London,  and  the  learned  advocate  of  the 
Tribunal,  Maitre  Ratier,  to  whom  he  entrusted  the 
matter — sent  back  the  sum  of  ^105,  or  100  guineas, 
and  placed  it  at  Sir  William  Eden's  disposal. 

From  that  moment  Mr.  Whistler  considered  him 
self  relieved  from  any  obligation  towards  his  former 
client.  He  had  in  his  possession  the  picture  you  see 
before  you,  representing  Lady  Eden  in  an  interior, 
the  composition  of  which  you  will  be  able  to 
appreciate.  It  is  a  composition  for  which  the  artist 
himself  had  a  special  affection,  and  to  which  he 
himself  gave  a  special  significance  when,  in  the 
Exhibition  of  1894,  he  placed  it  before  the  public 
under  the  title  "  Brown  and  Gold."  The  artist  was 
unwilling  to  lose  this  composition,  this  arrangement 
he  had  created.  Wishing  then  to  preserve  the  work 
which  he  considered  entirely  his  own,  he  modified 
the  composition  by  careful  erasures,  preserving  only 
the  substratum  of  his  work,  so  to  speak,  and  painting 
13 


out  Lady  Eden's  face  and  figure.  Then,  very  carefully, 
the  artist  brought  all  the  skill,  distinction,  and  inspi 
ration  of  his  brush  to  bear  on  the  creation  of  a  new 
portrait  on  the  same  panel,  and  sketched  in  another 
person.  There  was  a  certain  gentleman  named  Hale 
in  Paris  at  the  time,  who  wanted  a  portrait  of  his 
wife.  It  is  this  portrait  of  Mrs.  Hale  which  figures, 
or,  to  be  more  exact,  begins  to  figure,  on  Mr. 
WhistleVs  panel,  for,  as  you  see,  the  picture  is  quite 
unfinished,  both  as  a  whole  and  in  detail.  Mr. 
Whistler,  then,  has  replaced  the  original  picture  by 
a  new  one,  preserving  the  general  arrangement,  but 
modifying  details,  anxious  to  give  an  appropriate 
setting  to  this  new  figure,  and,  incidentally,  to  secure 
for  the  delight  of  posterity.  I  may  mention  in  pass 
ing  that  the  flower  just  indicated  to  the  right  of  the 
picture  is,  as  Sir  William  Eden  has  himself  pointed 
out,  an  addition  made  since  he  last  saw  the  picture. 

Such  were  the  circumstances  under  which  we  were 
cited  to  appear  before  the  Civil  Tribunal  of  the  Seine 
in  1894.  In  this  citation  Sir  William  Eden,  con 
firming  the  summons  already  served,  demanded  the 
delivery  of  the  picture,  and,  in  addition,  damages 
with  interest  to  the  amount  of  1000  francs  (£40). 

We  at  once  replied,  stating,  as  was  true,  that  Mr. 
Whistler  had  done  away  with  the  picture,  and  that,  as 
a  portrait  of  Lady  Eden,  it  no  longer  existed.  I  have 
14 


explained  that  the  work  had  been  partially  effaced, 
and  that  a  new  composition  had  been  substituted, 
which  is  as  yet  unfinished. 

Sir  William  Eden  hereupon  changed  his  ground. 
He  demanded  the  return  of  the  100  guineas  he  had 
paid  for  the  picture,  and,  in  addition,  10,000  francs 
(^400)  damages  with  interest.  On  February  15  he 
made  some  further  additions  to  his  pleadings.  He 
demanded  the  delivery  of  the  portrait  in  its  then 
condition,  and  finally,  on  March  6,  1895,  he  asked 
the  Tribunal  to  give  an  order  for  the  destruction  of 
the  picture  if,  finding  it  no  longer  represented  Lady 
Eden,  or  that  it  now  represented  some  other  person, 
the  Court  was  powerless  to  enforce  his  claims  to 
its  possession. 

Maitre  Beurdeley  here  proposed  to  read  the  report 
of  the  proceedings  in  detail,  but,  at  the  suggestion  of 
the  President,  proceeded  to  read  the  judgment  pro 
nounced  on  the  various  issues  by  the  lower  Court  on 
March  20,  1895. 

The  Court  then  adjourned. 

THE  CASE  was  re-opened  by  Maitre  Beurdeley  the 
next  day  as  follows : 

Gentlemen,  at  the  conclusion  of  yesterday's  sitting 
I  placed  before  the  Court  the  judgment  pronounced 
by  the  Sixth  Chamber  of  the  Tribunal  on  March  20, 


1 895.  But,  as  you  will  remember,  I  had  no  time  to 
go  into  the  procedure  which  resulted  in  this  judg 
ment.  You  will  therefore  allow  me  to  go  back  a  little, 
and  to  explain  the  order  in  which  the  various  ques 
tions  at  issue  were  placed  before  the  Court. 

I  told  you,  gentlemen,  that  a  summons  was 
served  upon  Mr.  Whistler  by  Sir  William  Eden  on 
November  8.  Its  object  was  to  obtain  possession  of 
the  picture.  On  the  following  day,  November  9, 1894, 
we  promptly  returned  the  ^£105  through  our  banker 
and  solicitor.  I  have  all 'the  documentary  evidence 
here,  and  it  has  been  examined  by  my  opponent.  On 
November  20  we  were  cited  to  appear  before  the  Civil 
Tribunal  of  the  Seine,  and  Sir  William  Eden  demanded 
the  delivery  of  the  picture,  and  1000  francs  (£40) 
damages  with  interest.  We  replied  that  the  picture 
no  longer  existed  as  a  portrait  of  Lady  Eden.  These, 
gentlemen,  were  the  exact  terms  of  our  argument : 
"  Seeing  that  Mr.  Whistler,  after  returning  the  100 
guineas,  considers  himself  free  from  any  obligation  to 
Sir  William  Eden,  taking  into  account  the  behaviour  of 
the  latter  and  the  circumstances  in  general ;  and  seeing 
further  that  Mr.  Whistler  has  therefore  painted  out 
Lady  Eden's  face,  retaining  only  the  general  composi 
tion,  in  which  he  intends  to  introduce  another  head." 

You  will  see  that  this  statement  was  not  quite 
accurate,  and  that  we  accordingly  corrected  it  later 
16 


on.     The  pleadings  were  drawn  up  from  instructions 

given   to  the   advocate  in  English,  which  were  im-   Figure,  in  English. 

becoming  easily,  in 

perfectly  understood  and  imperfectly  translated.  $£*•** 
When  I  showed  them  to  Mr.  Whistler,  he  said : 
"  That's  not  quite  accurate."  You  will  see  how  we 
rectified  the  inaccuracy,  but  before  we  did  so  Sir 
William  Eden  gave  an  entirely  new  turn  to  the 
proceedings  by  his  pleadings  of  February  26,  1895. 
He  says :  "  In  view  of  this  extraordinary  fact  (i.e.,  the 
alteration  of  the  picture),  the  plaintiff  is  under  the 
necessity  of  revising  his  pleas,  and  asking  for  damages 
with  interest."  He  therefore  claims  the  repayment 
of  the  sum  of  2625  francs  (.£105),  the  payment  of  a 
sum  of  10,000  francs  (^400)  damages  with  interest, 
and  all  the  costs  of  the  proceedings.  The  handing 
over  of  the  portrait  is  no  longer  insisted  upon,  this 
being  clearly  out  of  the  question. 

On  February  27,  1895 — *ne  n®xt  day — Sir  William 
Eden  reconsidered  the  matter.  He  asked  the  Court 
to  admit  his  first  pleadings  forthwith,  and  alterna 
tively,  if  Lady  Eden's  portrait  proved  to  be  mutilated, 
as  asserted  by  Mr.  Whistler,  to  order  the  delivery  of 
the  portrait  in  its  actual  state  under  penalty  of  a  fine 
of  TOO  francs  (^4)  a  day,  with  interest,  for  every 
day's  delay — also  to  condemn  Mr.  Whistler  to  repay 
to  the  plaintiff  the  sum  of  100  guineas  given  for  the 
picture,  with  interest  from  the  day  on  which  it 
17  B 


was  paid,  and  further,  a  sum  of  10,000  francs  (^£400) 
damages  with  interest. 

We  now  come  to  the  rectification  of  Mr.  Whistler's 
own  pleadings,  rectifications  not  of  his  main  position, 
but  of  the  inaccuracies  in  the  statement  made, 

"  Mr.  Whistler  wishes  it  to  be  understood  that  it 
was  Sir  William  Eden  who  approached  him,  requesting 
him  to  paint  a  portrait  of  Lady  Eden ; 

"  That  he  (Whistler)  agreed  to  a  very  exceptional 
reduction  in  the  price  first  suggested  ; 

"  That  he  painted  not  only  the  head,  as  Sir 
William  had  wished,  but  the  whole  figure,  and  this 
greatly  to  Sir  William  Eden's  satisfaction  ; 

"  That,  on  his  side,  Sir  William  gave  Whistler  the 
minimum  sum  spoken  of  in  their  correspondence, 
handing  it  to  him  in  the  guise  of  a  friendly  gift ; 

"  That  Whistler  has  entirely  repainted  the  picture, 
retaining  only  the  composition  and  general  harmony, 
and  substituting  the  portrait  of  another  sitter  for  that 
of  Lady  Eden ; 

"  That  it  was  by  an  error  of  transcription  in  the 
instructions  given  by  Whistler  to  his  advocates  that 
Lady  Eden's  head  was  stated  to  be  the  only  part  of 
the  picture  obliterated." 

As  to  Sir  William  Eden's  final  pleadings,  gentle 
men,  I  shall  have  to  go  over  them  with  you  again. 
18 


There  was  a  further  modification  of  these  on  March 
6,  1895: 

"  Whereas  the  plaintiff,  on  examining  the  picture, 
formally  recognised  it  as  his  property,  identifying  it 
not  only  by  the  tonality  of  the  face,  but  also  by  all 
the  accessories,  the  furniture,  the  hangings,  even  the 
dress  worn  by  Lady  Eden  when  she  sat,  and  seeing, 
further,  that  he  declares  the  only  changes  are  the 
modification  of  the  features  and  the  introduction  of 
a  flower  on  the  right ; 

"  "Whereas  this  is  unquestionably  the  picture  which, 
as  he  ordered  it  and  paid  for  it,  became  the  property 
of  Sir  William  Eden ; 

"And  whereas,  if  the  Tribunal  considers  the 
substitution  of  another  face  cancels  the  plaintiffs 
right  to  the  possession  of  the  picture,  it  would  have 
reasonable  grounds  for  ordering  the  panel  to  be 
destroyed,  and  for  giving  a  verdict  for  the  plaintiff 
as  regards  the  refunding  of  the  price  and  the 


This,'gentlemen,  was  the  situation  when  we  appeared 
before  the  Tribunal,  and  when  the  Court  gave  the 
judgment  I  have  had  the  honour  to  read  you. 

This  judgment  recapitulates  the  facts  I  have  laid 

before  the  Court  with  tolerable  accuracy.     It  accepts 

the  statements  that  Sir  William  took  the  initiative 

in  the  matter,  that,  introduced  by  Mr.  Moore,  he 

19 


called  on  Mr.  Whistler  in  his  studio,  and  asked  for  a 
reduction  in  the  price  mentioned  by  Mr.  Whistler, 
and  that  Mr.  Whistler  very  gracefully  agreed  to  the 
price  suggested  by  Mr.  Moore  or  Sir  William  Eden. 
It  further  admits  that  Sir  William  arrogated  to 
himself  the  right  of  judgment  in  the  matter  of 
maximum  and  minimum. 

You  will  remember,  gentlemen,  how  the  cheque  was 
conveyed  to  Mr.  Whistler  on  Valentine's  Day.  You 
will  remember  under  what  conditions  and  with  what 
irony  Mr.  Whistler  received  this  valentine.  The 
judgment  speaks  of  his  having  "  cashed  the  cheque." 
What  he  really  did  was  to  pay  the  cheque  into  his 
banking  account. 

The  judgment  further  says  (and  here  it  is  not  quite 
accurate)  that  the  relations  between  Sir  William  and 
Lady  Eden  and  Mr.  Whistler  continued  to  be  per 
fectly  amicable.  This  is  not  quite  true.  The  fact  is 
that  there  have  been  no  relations  of  any  sort  between 
them,  Mr.  Whistler  never  having  since  met  his  client 
or  the  charming  model  he  was  to  have  reproduced. 
He  went  on  with  his  picture,  it  is  true,  but  with 
out  the  help  he  had  originally  hoped  for  from  his 
sitter. 

The  Tribunal  opined  that  the  exhibition  of  the 
portrait  was  sanctioned,  at  least  tacitly,  by  Sir 
William  Eden.  But  you,  gentlemen,  will  under- 


stand  that  there  was  no  opportunity  for  any  sanction 
of  the  kind,  as,  immediately  after  the  scene  I  have 
described,  in  which  Mr.  Whistler  congratulated  Sir 
William  on  his  "  magnificence,"  the  latter  started 
for  India,  whence  he  returned  some  time  after  the 
exhibition,  in  the  month  of  November,  in  fact,  when 
he  claimed  the  picture.  I  have  now  established  the 
facts  of  the  case  ;  we  shall  be  able  presently  to  see  how 
they  are  affected  by  legal  considerations. 

The  legal  aspects  of  the  case,  gentlemen,  have  been 
pronounced  upon  by  the  judges  in  the  first  trial. 
They  gave  judgment  against  my  client  on  three 
counts.  They  ordered  him  to  hand  over  the  portrait, 
which  they  declared  to  be  still  Sir  William  Eden's 
property ;  to  refund  the  i  oo  guineas  paid  for  it  and 
to  pay  damages  to  the  amount  of  1000  francs  (£40 
with  interest. 

This  my  client  and  I  and  many  other  persons 
consider  excessive.  It  is  obviously  excessive  to  award 
Sir  William  Eden  both  the  article  and  the  price  paid 
for  it,  with  damages  to  boot. 

You  are  all  aware,  gentlemen,  of  the  sensation  this 
case  has  made.  The  judgment  naturally  provoked  a 
good  deal  of  discussion,  both  here  and  in  England. 
I  will  add  nothing  to  these  comments.  You  ad 
minister  the  law,  regardless  of  what  the  public  at 
21 


large  may  say  or  write.  But  you  will  allow  me  to 
lay  before  you  a  letter  written  to  an  English  news 
paper  by  my  client  the  day  after  the  trial.  The  special 
interest  of  the  document  is  this :  it  sums  up  the 
facts ;  it  brings  out  the  points  I  have  had  the  honour 
to  urge  upon  you  ;  and  further,  it  reveals  the  indivi 
dual  characters  of  the  litigants.  The  letter  I  am 
about  to  read  you  was  written  under  these  circum 
stances.  An  English  journalist,  or,  rather,  an  English 
barrister,  wrote  to  the  Pall  Mall  Gazette  applauding  the 
judgment  given  by  the  Sixth  Chamber,  and  arguing 
that  no  special  privilege  can  be  claimed  by  artists  in 
questions  of  contract ;  that,  like  all  other  cit  zens, 
they  are  bound  by  the  obligations  they  have  under 
taken  ;  that  the  artist  and  the  shoemaker  work  under 
precisely  similar  conditions,  and  are  equally  respon 
sible  for  the  due  delivery  of  their  wares,  whether 
these  be  shoes  or  pictures. 

Mr.  Whistler  proceeded  to  work  out  this  argument 
to  an  extreme  conclusion,  in  the  vein  of  humour 
peculiar  to  himself — that  is  to  say,  in  a  very  witty 
and  good-tempered  fashion.  I  will  read  you  a  trans 
lation  of  his  letter,  made,  not  by  a  sworn  translator, 
but  by  his  intimate  friend,  the  distinguished  man  of 
letters,  Stephane  Mallarme : 

SIR— I  find  no  objection  to  "Q.C.'s"  theory, 
that  the  law  for  painters  and  cobblers  should  be  the  same.     He 

22 


may  be  quite  right,  only  he  doesn't  get  far  enough,  and  misses  the 
point ! 

If  a  pair  of  slightest  slippers  be  ordered,  through  wheedling  of 
friend,  on  the  understanding  that  they  shall  cost  from  half  a 
sovereign  to  fifteen  shillings,  it  is  the  cobbler  only  who  shall  deter 
mine  when,  in  his  own  folly,  and  under  the  approving  eye  of  the 
appreciative  customer,  the  flimsy  slippers  have  grown  into  elabo 
rately  dandy  boots,  and  are  off  the  last,  whether  half  a  sovereign  or 
fifteen  shillings,  or,  according  to  his  sense  of  their  beauty,  any  sum 
between  shall  pay  for  them. 

And  if,  before  his  natural  gentleness  has  allowed  him  to  make 
out  his  bill,  the  very  smart  customer  cuts  the  ground  from  under 
him,  and,  in  the  sly  form  of  affectionate  "Valentine,"  forces  the 
meaner  sum  upon  him,  hoping  to  make  the  situation  of  a  delicacy 
beyond  his  tackling,  he  has  every  right,  as  noble  cobbler,  to  be 
indignant,  and  send  his  pitiful  client  about  his  business ! 

If,  however,  the  wicked  and  enthusiastic  cobbler  see  through  the 
trick,  and  wish  to  expose,  publicly,  the  ungrateful  trickster,  then  he 
accepts  the  "Valentine,"  though  only  temporarily,  and  when,  later 
on,  the  boots  are  demanded  through  sheriff  and  lawyer,  he  sends 
back  the  half-sovereign,  and  refuses  to  give  up  the  boots — saying 
effectually  :  ' '  Sue  me  for  them  !  Come  and  claim  them  in  open 
court.  Come  and  tell  the  pretty  story  before  the  people,  that  the 
world  may  know,  and  my  fellow  cobblers  be  warned,  and  that  you 
may  go  barefoot  and  horny  among  them  ever  after.  Sooner  than 
that  you  be  shod  by  me  I  will  rip  off  the  uppers,  or  fit  them  to 
another ! " 

"  Pourquoi,  Monsieur" — I  was  prepared  for  the  question — 
"pourquoi,  si  vous  n'aviez  pas  1'intention  de  livrer  le  tableau, 
aviez  vous  accept^  le  cheque  ?  " 

"  Pour  qu'il  vienne  me  le  rlclamer  id — devant  tout  Paris  I " 

Now,  this  is  what  has  happened.  His  story  is  told !— and  the 
whine  of  it  remains  in  the  ears,  and  the  odour  of  it  in  the  nostrils, 
of  my  confreres— and  I  doubt  if  the  insinuating  amateur  will  again 
23 


unhook  in  a  hurry  any  picture,  humbly  cozened  for  as  sketch,  from 
easel  in  any  studio  at  home  or  abroad. 

Yours,  &c., 

J.  MCNEILL  WHISTLER. 
Paris. 

Gentlemen,  this  letter  removes  any  doubt  as  to  the 
nature  of  the  sentiments  by  which  Mr.  Whistler  was 
actuated.  He  certainly  meant  to  play  off  the  stra 
tagem  of  the  valentine  by  another  stratagem.  He 
said :  "  You  offer  me  a  valentine ;  I  accept  your 
valentine."  It  is  clear  that,  in  his  letter  to  the  Pall 
Mall  Gazette,  he  intended  to  read  a  lesson  in  behaviour 
to  a  man  he  looked  upon  as  an  ill-bred  person,  a  rather 
sorry  gentleman.  He  hoped  to  see  him  admonished 
by  the  Tribunal  of  the  Seine.  Was  he  right,  or  was 
he  mistaken  ?  He  was,  no  doubt,  mistaken,  for  law 
courts  cannot  adjudicate  on  these  points.  Tribunals, 
or,  at  least,  our  French  tribunals,  are  not  called  upon 
to  say  whether  a  man  has  acted  delicately  or  indeli 
cately  ;  they  decide  questions  of  law  or  questions  of 
fact.  But  I  would,  nevertheless,  ask  you  to  compare 
the  respective  conduct  of  the  artist  and  of  his  client. 
You  will  bear  it  in  mind,  gentlemen,  when  you  have 
to  consider  the  question  of  damages.  You  will 
remember  how  Sir  William  Eden  insinuated  himself 
in  Whistler's  studio ;  how  he  himself  named  the  price 
he  was  willing  to  pay ;  you  will  remember  the  care 

24 


with  which  Mr.  Whistler  executed  the  portrait,  and 
finally,  how  the  rupture  was  brought  about. 

I  now  come,  gentlemen,  to  the  legal  questions 
arising  out  of  the  facts  I  have  laid  before  you. 
The  Court  condemned  Mr.  Whistler  to  return  the 
price  of  the  portrait,  to  hand  over  the  portrait 
itself,  and  to  pay  damages  to  the  amount  of  1000 
francs  (^40). 

But  what,  as  a  fact,  does  Mr.  Whistler  owe  the 
plaintiff?  One  thing  he  certainly  owes  him,  as  we 
have  admitted  from  the  first — the  sum  of  100  guineas 
paid  for  the  picture.  This,  as  you  know,  he  offered 
to  return  at  the  beginning,  and  it  has  always  been  at 
Sir  William  Eden's  disposal.  But  the  money  itself 
was  never  actually  tendered,  and  my  client  is  there 
fore  liable  to  be  condemned  in  damages  and  interest 
on  this  indictment.  I  recognise  this  fact,  just  as  the 
Court  recognised  it.  But,  as  the  Court  condemned 
us  to  make  restitution  of  the  money,  we  were  aston 
ished  when  it  further  condemned  us  to  give  up  the 
portrait ;  for  it  is  difficult  to  see  how  Sir  William 
Eden's  claims,  both  to  the  portrait  and  the  money,  are 
to  be  reconciled. 

My   opponent   argues  that  the  Court,  in   giving 

judgment,  made  this  award  by  way  of  damages  on 

the  first  count.     Indeed,  one  of  the  plaintiff's  pleas 

is,  I  find,  that  Mr.  Whistler  be  ordered  to  pay  2625 

25 


:-:.--.          I.:-/..:.;'-:'-.       v  -.-.;.      1.L  >';.".-;•-.       V.       ":.J       "'  .....  -.[:_ 

OKI  tire  first  «wai&- 

C(*$^ 


•.      -.._•".•.:     .'•-.••.  "        :-.    .--.,-     .: 
.'  .:       :  -.  -.'•--   -  -   ".:-•:    •  .::.::..:. 

•    '       •     -.          '.     *.  '-     ::-     ..:     •'..••-  '    -    .-. 


•: 

-  :.    •  .    :• 


..:•-      -. 

paid 

fam»: 

Mm  0f  1000 

we  BOM*  tbe  real  dama 


1000  fn&*x.    The  2625  is  aaotifter  matter  alto 
aad  »  «toteribed  a§  •  imHtiiliuu  cf  tbe  prioe  p 

V  ::    ;../.-..:::    •.  ,    >,  i  ':  :.  :   v,  .  v.    :    •    :    >..•:>.".    ;:.-.K  . 
-..--.  "..-.  •   -.':   •-;::.-:.". 

tW<  gtutiMMB,  k  tb»  exact  cttuaticm,    I 
fare  sak  Ike  Court  to  emUrm  db«  «fcatem«it  of  tbe 
•ffifliHiinf-itp  00  tftai*  potot,  ao4  n0(  the  pleading. 

If,  jBefsrftAeoaeo,  thw  finst  ju4gn*e»  t  M  eoDfanied  by 
tiMCMft,  I  tfaliiiktl»at^Mow»cmMtotbe«e0o^ 
wfckfa  atfar*  tie  fafor&j  of  tb«  picture  to  8tr 
in  itt  praKot  «tetof  w«  shall  fo4  it 
,-. 


dii&ruh  to  carry  out.    I 
1  hav*  already  said,  tKa:    it  fe 
Sir  Wil^am  can  cUim  on  the  oc^  hand  the 
the  yicaire*  and  on  tke  other  the  pktv.iv  its« 
another  rvt^ux  why  Sir  \YilouM 
tJb«  portrait.     It  »  rx>  locjr  a 
hts  wife. 

Uh*  thirvi  oo«ut%  t4*  Court  will  say: 
Sir  \Villsutti  Kvlec.  has  not 
\  vi'n     nimtljr. 
him 
w  hvh  k$  uo 


t  of 


01  ^>»*  UurU 
The  picture  as  it  no 


harmony  in  brown  and  gold ;  something  is  eventually 
to  dominate  those  harmonious  tints — a  new  face ;  but 
as  yet  it  is  in  the  stage  of  conception,  not  in  that  of 
birth.  Hence  it  is  absolutely  impossible  both  to  obey 
the  ruling  of  the  lower  Court  and  to  satisfy  Sir 
William  Eden. 

What,  then,  were  the  considerations  which  led  the 
Court  to  award  Sir  William  Eden,  not  only  the  price 
of  the  picture,  but  also  a  picture  which,  by  his  own 
showing,  is  no  longer  his  wife's  portrait,  but  the  por 
trait  of  some  other  person,  and,  in  any  case,  an 
unfinished  work?  The  Court  was  influenced  by 
certain  legal  considerations — by,  in  my  opinion,  a 
mistaken  view  of  the  law,  and  by  the  application  of 
certain  articles  in  the  Code  bearing  on  sales,  to  the 
matter  in  which  we  are  now  engaged. 

The  Court  was  of  opinion  that,  "  from  the  moment 
when  Whistler  took  the  cheque — that  is  to  say,  on 
February  14  or  15 — there  existed  a  formal  agree 
ment  between  him  and  the  plaintiff  as  to  the  price  of 
the  article  to  be  delivered."  This,  gentlemen,  will  of 
course  recall  to  you  the  following  article  of  the  Code : 

"  A  sale  has  been  concluded  between  the  contract 
ing  parties,  and  the  property  legally  acquired  by  the 
buyer,  as  soon  as  the  thing  and  the  price  have  been 
agreed  upon,  although  the  thing  may  not  yet  have 
been  delivered  nor  the  price  paid." 
28 


In  this  case  the  price  was  paid,  but  the  thing  was 
not  delivered.  Article  1583  of  the  Civil  Code  was 
accordingly  applied  by  the  Court.  This  will  at  once 
be  apparent  to  you,  gentlemen,  when  you  read  over 
the  judgment,  and,  above  all,  when  you  read  the 
remarkable  and  ingenious  pleadings  of  M.  Lenard, 
the  substitute  of  the  Procurator  of  the  Republic,  who 
formulated  the  thesis  adopted  by  the  Court.  Taking 
this  special  view  of  contract  again,  M.  Lenard  further 
quoted  Article  1601  of  the  Civil  Code  : 

"  If  at  the  time  of  sale  the  object  sold  were  entirely 
destroyed,  the  sale  would  be  cancelled.  If  it  were 
only  partially  destroyed,  the  buyer  would  have  the 
option  of  repudiating  the  purchase,  or  demanding 
such  part  of  the  object  as  had  been  preserved,  after 
causing  a  valuation  thereof  to  be  made." 

This,  gentlemen,  was  the  point  insisted  on  by  M. 
Lenard  in  his  pleadings.  The  theory  adopted  by  the 
Court  was  this  :  "  The  day  Mr.  Whistler  wrote  the 
letter  acknowledging  the  receipt  of  the  valentine  there 
was  a  transfer  of  property.  The  work  which,  up  to 
this  time,  had  belonged  to  the  artist,  became  part  of 
Sir  William  Eden's  estate,  in  virtue  of  the  law  of 
sale ;  his  proprietary  rights  have  not  been  modified, 
for  the  object  of  his  contract  has  not  been  wholly 
destroyed ;  it  was  only  partially  destroyed  ;  the  panel, 
the  general  harmony,  the  composition  still  exist.  The 
29 


Court  even  declares  that  the  picture  as  a  whole  and 
in  part  belongs  to  Sir  William  Eden." 

Even  if  we  allow  the  law  of  sale  to  be  applicable 
here,  we  shall  still  have  certain  objections  to  make. 
Was  there  an  agreement  between  the  buyer  and 
seller  as  to  the  object  and  its  price  ?  This  seems 
very  doubtful.  The  object  was  not  clearly  defined  on 
February  14.  You  know  the  picture  was  not  finished. 
Remember  Mr.  Whistler's  letter,  in  which  he  said  : 
"With  Lady  Eden's  help,  I  hope  to  make  the 
work  complete."  The  artist,  then,  had  not  yet  said 
his  last  word,  or  given  his  finishing  touches.  As 
regards  the  price,  it  was  determined  by  Sir  William 
Eden,  but  certainly  not  by  Whistler.  The  Court, 
I  know,  was  unable  to  accept  the  whole  letter  as 
ironical.  But  clearly,  it  implied  certain  reservations. 
The  repetition  of  the  word  valentine — "  I  accept  your 
valentine " — certainly  had  a  meaning.  "  You  are 
really  magnificent,  and  have  scored  all  round,"  cer 
tainly  had  a  meaning.  The  sequel  plainly  shows 
that  Mr.  Whistler  had  certain  reservations  in  his 
mind.  His  plan,  as  you  know,  was  to  retain  the 
picture,  to  force  Sir  William  Eden  to  claim  it  publicly, 
and  then  to  put  him  to  public  confusion.  There  was 
no  agreement  either  as  to  object  or  to  price.  Even  if 
we  admit  that  the  case  comes  within  the  meaning  of 
Article  1583  of  the  Code,  we  shall  not  admit  that 
30 


there  was  the  necessary  agreement  between  buyer 
and  seller. 

Besides,  gentlemen,  you  all  know,  and  it  is  a  fact 
universally  recognised,  the  artist  does  not  give  up  his 
work,  and  the  transmission  of  a  work  of  art  does  not 
take  place,  save  by  the  formal  consent  of  the  artist. 
The  artist  is  the  master  of  his  work  from  the  elemental 
point  of  view,  seeing  that  he  is  its  creator.  The 
artist  is  the  owner  of  his  creations.  He  continues  to 
be  the  master  and  owner  of  his  work  till  the  very  last 
moment,  till  the  day  when  he  is  himself  completely 
satisfied.  There  was  no  act  of  Mr.  Whistler's  which 
could  lead  you  to  suppose  that  he  was  willing  to 
transmit  his  property  to  Sir  William  Eden. 

These  principles,  gentlemen,  are  firmly  established. 
With  your  permission  I  will  read  you  two  pages  from 
M.  Pouillet's  work  on  the  Law  of  Literary  and  Artistic 
Property. 

(Maitre  Beurdeley  here  read  passages  in  support  of 
his  argument.) 

Such,  then,  are  the  principles  laid  down.  The 
artist  who  creates  a  work  is  its  owner  until  he 
deliberately  gives  it  up.  Why  is  this  so?  Here  I 
must  ask  my  client's  leave  to  differ  from  him.  We 
are  not  only  concerned  with  an  obligation  to  execute 
which  resolves  itself  into  damages  when  the  agree 
ment  is  not  carried  out ;  whatever  my  client  may 


think,  there  is  a  difference  between  an  artist  and  a 
shoemaker,  and  in  the  domain  of  art  and  literature 
there  are  special  rules  to  be  observed. 

Here  again,  gentlemen,  the  law  has  been  defined 
for  us  by  authorities.  What,  it  has  been  asked,  is  the 
nature  of  the  contract  by  which  an  artist  receives  an 
order  for  a  work  of  art  ?  Is  it  a  sale,  an  agreement 
to  work  for  hire,  or  a  commission  ?  It  has  been 
established  that  it  is  a  contract  sui  generis.  I  will 
quote  Messrs.  Aubry  and  Rau  on  this  point. 

(The   President   here   remarked  that  this  was  un 
necessary,  the  point  being  clearly  established.) 

What  we  have  to  consider,  then,  is  the  obligation 
to  execute.  Mr.  Whistler,  we  may  take  it,  continued 
to  be  the  owner  of  the  picture,  although  at  a  given 
moment  it  may  have  appeared  finished.  He  con 
tinued  to  own  it,  not  having  given  it  up  to  the 
claimant,  although  he  had  exhibited  it.  The  exhibi 
tion  was,  in  fact,  an  experiment,  a  sort  of  rehearsal, 
as  we  may  gather  from  the  fact  that  on  several 
occasions  incomplete  works,  works  unsigned,  and 
even  unfinished,  have  been  exhibited  as  pictures  by 
Whistler. 

It  is  evident,  then,  that  Mr.  Whistler  continued  to 
be  the  owner  of  the  picture.     If,  therefore,  he  de 
stroyed  any  one's  property,  it  was  his  own.     If  he  can 
justly  be  called  upon  to  pay  damages,  which  you  may 
32 


the  more  reasonably  claim,  the  nearer  you  can  show 
Sir  William  Eden  to  have  been  to  his  object — the 
more  closely  he  approached  to  the  acquisition  of  the 
work — the  more  evidently  it  seems  to  have  been 
intended  for  him  at  a  given  moment — it  is  neverthe 
less  clear  that  you  can  claim  nothing  beyond  these 
damages. 

Well,  gentlemen,  Mr.  Whisller  has  modified  the 
picture.  It  is  no  longer  a  portrait  of  Lady  Eden. 
But  the  Court  might  have  scruples  on  one  point,  and 
I  hasten  to  reassure  it.  If  the  picture  were  still  a 
portrait  of  Lady  Eden,  the  Court  might  think  her 
husband  justified  in  claiming  it ;  it  might  think,  at 
any  rate,  that  his  original  plea  for  the  destruction  of 
the  panel  was  a  reasonable  one.  We  go  to  an  artist, 
and  request  him  to  reproduce  the  features  of  some  one 
who  is  dear  to  us.  The  artist,  either  because  of  some 
question  of  money  (which  is  not,  however,  the  case 
here),  or  because  of  some  question  of  appreciation 
(which  apparently  led  to  the  rupture  between  Whistler 
and  Eden),  declines  to  give  up  the  thing  we  ordered. 
We  cannot  allow  that  the  artist  has  any  right  to 
retain  as  his  own  property  the  presentment  of  the 
beloved  person  whose  features  we  asked  him  to  repro 
duce.  The  very  idea  is  alarming.  It  would  not  be 
unreasonable  to  demand  the  destruction  of  the  work 
under  certain  circumstances,  but  it  would  be  highly 
33  c 


unreasonable  to  demand  the  delivery  of  an  imperfect 
work.  Gentlemen,  you  can  now  judge  how  far  this 
picture  can  be  called  a  portrait  of  Lady  Eden.  It  is 
not  a  portrait  of  any  one ;  it  is  no  longer  the  portrait 
of  Lady  Eden ;  it  is  not  yet  the  portrait  of  Mrs. 
Hale. 

MAITRE  BUREAU  :  But  Mrs.  Hale's  husband  has 
claimed  it. 

MAITRE  BEURDELEY  :  T  will  explain  that  presently. 
Allow  me  to  continue  as  systematically  as  I  can.  I 
will  take  the  various  objections  I  have  to  deal  with  in 
their  order.  I  say  you  have  only  to  look  at  this 
portrait  to  see  that  it  is  not  the  portrait  of  any 
special  person.  As  I  said  just  now,  something  has 
got  to  be  created,  a  personality  as  yet  undetermined, 
It  should  have  been  the  personality  of  Lady  Eden,  for 
it  was  she  whose  features  are  indicated ;  but  it  is  no 
longer  her  portrait,  and,  on  the  other  hand,  it  is  not 
yet  the  portrait  of  Mrs,  Hale. 

As  far  as  Lady  Eden  is  concerned,  the  portrait  has 
ceased  to  exist.  What  proof  of  this  statement  can 
we  bring  forward  ?  First  of  all,  we  have  the  declara 
tion  of  the  lower  Court  itself  :  as  Sir  William  Eden 
cannot  have  Lady  Eden's  portrait,  we  must  give  him 
damages.  My  opponent  admits  that  alterations  have 
been  made  in  the  portrait,  that  the  face,  indeed,  has 
been  completely  modified,  that  the  ensemble,  too,  has 
34 


been  modified  by  the  introduction  of  a  flower  on  the 
left  of  the  picture.  We  maintain  that  the  original 
picture  has  been  practically  effaced,  that  only  the 
general  composition  has  been  preserved,  that  Lady 
Eden's  pose  was  retained,  it  is  true,  but  that  the  head 
and  the  hands  are  no  longer  the  same,  although  the 
dress  has  been  adapted  to  the  new  conception. 

Indeed,  gentlemen,  if  I  may  be  allowed  to  say  so, 
a  sincere  artist,  a  master  of  harmony  like  Whistler, 
could  not  alter  the  personality  of  a  sitter  without 
modifying  the  whole  portrait.  He  could  not  simply 
introduce  anew  face  among  settings  and  surroundings 
designed  for  another. 

What  does  Mr.  Whistler  himself  say?  "I  have 
retained  the  general  arrangement."  The  general 
arrangement  is  the  painter's  own  creation,  something 
apart  from  the  portrait ;  it  formed  no  part  of  your 
commission  to  him ;  this  composition,  this  harmony, 
this  arrangement  of  accessories  is  his,  to  apply  to 
another  subject  if  he  so  pleases. 

This,  gentlemen,  is  my  answer  to  my  opponents. 
The  Court  need  have  no  scruples.  What  Mr.  Whistler 
retains  can  in  no  way  offend  the  just  susceptibilities 
of  Lady  Eden  or  her  husband.  The  picture,  as  a 
portrait  of  Lady  Eden,  has  disappeared. 

But  here,  gentlemen,  my  opponent  challenges  me. 
He  says,  "  Mrs.  Hale  no  longer  claims  the  picture, 
35 


though  she  claimed  it  at  the  first  trial."  I  shall 
probably  be  asked  how  it  is  that  she  no  longer 
appears. 

The  matter  is  simple  enough.  Mr.  Whistler,  con 
sidering  himself  the  rightful  owner  of  the  picture 
in  spite  of  the  decision  of  the  lower  Court,  adapted 
the  composition  originally  intended  for  Lady  Eden 
to  another  head.  This  head  is  at  present  in  an 
embryonic  state.  Mrs.  Hale,  anxious  to  have  this 
composition,  which  Mr.  Whistler  promised  her 
(another  graceful  concession  on  the  artist's  part), 
intervened  through  her  husband  at  the  first  hearing ; 
but  her  plea  was  set  aside  on  the  ground  that 
there  had  been  undue  delay  in  intervening.  Mrs. 
Hale's  husband  no  longer  appears ;  and  why  ? 
Because  a  long  interval  has  now  elapsed ;  because 
he  is  now  in  America;  because  he  has  given  up  all 
hope  of  obtaining  the  portrait.  As  by  the  judgment 
of  the  Court  Mr.  Whistler  was  forbidden  to  continue 
his  work  on  the  picture,  Mrs.  Hale's  husband  lost 
his  interest  in  the  matter,  and  no  longer  appears 
with  us.  He  would,  in  fact,  be  rather  inclined  to 
appear  against  us,  in  which  case  I  should  say  to  him, 
as  I  say  to  Sir  William  Eden  :  "  You  have  no  right 
to  the  picture  ;  it  is  not  finished.  It  is  still  my 
property.  As  long  as  it  remains  unfinished,  as  long 
as  I  refrain  from  handing  it  over  to  you  by  a 
36 


voluntary  act,  which  would  be  tantamount  to  an 
admission  that  I  consider  the  work  final  and  perfect, 
you  have  no  claim  upon  it.  It  still  forms  part  of  my 
estate,  and  if  I  choose  at  my  own  risk  and  peril  to 
alter  the  composition,  to  modify  either  the  figure  or 
the  accessories,  I  shall  do  so  freely." 

This  is  the  situation.  I  have  nothing  more  to 
add,  unless  it  be  that,  from  another  point  of  view, 
you  cannot  compel  Mr.  Whistler  to  give  up  an 
unfinished  work,  an  incomplete  idea.  By  a  deliberate 
act  Mr.  Whistler  made  it  impossible  that  he  should 
carry  out  his  contract  with  Lady  Eden.  He  must 
therefore  pay  damages ;  the  question  is  purely  one  of 
damages.  This  is  laid  down  in  Article  1142  of  the 
Code.  You  will  allow  me  to  read  it,  as  it  contains 
the  root  of  the  whole  matter. 

"  All  obligation  to  execute  or  not  to  execute  is  to 
be  settled  by  the  award  of  damages,  in  case  of  non- 
execution  on  the  part  of  the  seller." 

And  in  Dalloz'  annotated  code  I  read  further : 

"  When  execution  has  been  rendered  impossible  by 
the  act  of  the  defaulter,  no  penalty  can  be  asked  for 
but  damages."  And  we  are  referred  to  the  heading 
"Obligation,"  No.  713,  in  La  Jurisprudence  Gcmrale. 
There  can  be  no  doubt,  gentlemen,  on  this  head. 
All  we  need  therefore  consider  is  the  question  of 
damages. 


The  Civil  Tribunal  of  the  Seine  condemned  Mr. 
Whistler  to  pay  1000  francs  damages  with  interest. 
You  will  form  your  own  conclusions,  gentlemen  ;  but 
I  am  of  opinion  that  the  Court  had  some  difficulty  in 
justifying  this  award.  Our  opponent  pleaded  the 
trouble  Lady  Eden  had  been  put  to,  the  fatigue  and 
inconvenience  involved  in  sitting  to  an  artist  so 
fastidious,  careful,  and  exacting  as  Mr.  "Whistler. 
The  Court,  however,  disregarded  this  plea,  and 
justified  its  award  by  saying,  "  Mr.  Whistler  failed  to 
supply  what  he  agreed  to  supply ;  Sir  William  Eden 
has  a  right  to  damages  since  he  is  not  to  have  Lady 
Eden's  portrait." 

He  is  not  to  have  it,  I  am  quite  sure  ;  but  he  has 
compensation — he  has  the  money  he  ventured  for  the 
portrait.  And  before  assessing  damages,  the  Court 
must  remember  the  respective  proceedings  of  patron 
and  client  in  this  matter. 

I  need  not  go  into  the  details  which  Mr.  Whistler 
has  several  times  given  you  of  the  relations  between 
himself  and  his  client.  But  here  again  the  Court 
might  be  influenced  by  certain  scruples.  Here,  they 
might  say,  was  the  father  of  a  family  who  wished  to 


"Jene  veux  pas 
revenir  sur  le  recit 
qui  a  et<f  fait 
plusieurs  fois  par 
M.  Whistler  lui- 
me'me  des  rapports 
qui  ont  eu  lieu 
entre  1'artiste  et 
1'amateur.    Ici 
encore,  il  y  a  un- 
scruple  que  pour- 
rait  avoir  la  Cour. 
El!e  pourrait  se 
dire:  Voila  un  pere    ,  .-.  ,   .          i   -i  i  «j        r-    ii      •  ii 

de  famine  qui         bequeath  to  his  children  a  portrait  01  their  mother, 

voulait  teguer  a  ses 

"__  „  .  Would 

voulait  que  ce  fiU 

consent  comme  un 

heritage  de  famille 

et  que  ce  soit  un 

depdt  sacre"  se 

transmettant  de 

g<£ne>ation  en  ^8 

gdne>ation.    II  y  a  J 

la  une  satisfaction  morale  qui  peut  dans  une  certaine  mesure  se  traduire 

par  des  dommages  et  inte'rets.    Mais  est-ce  le  cas  de  Sir  William  Eden? 

J'ai  le  regret  d'etre  oblige"  de  r^pondre:  Non.    Vous  savez,  Messieurs, 

que  je  n'aime  pas  a  mettre  en  cause  directement  la  personne  des  adver- 

-saires,  ie  trouve  que  souvent  cela  est  inutile,  que  c'est  parfois  dangereux, 


desiring  it  to  be  preserved  as  an  heirloom. 

this  be  true  in  the  case  of  Sir  William  Eden  ?     I 

regret  to  have  to  say  no.     You  know,  gentlemen, 


mais  \h  je  suis  dans  la  necessite  de  vous  dire  ce  qu  est  Sir  William  dans  Ic 
rapport  que  cela  a  avec  la  question  que  vous  avez  i  r^soudre,  c'est  a  dire 
la  question  des  dominates  et  interets. 

Sir  William  Eden  qui  sc  rtonne  comme   un  amateur  est  en  rdalitc  un 
amateur  spe'ciflateur  de  tableaux.    Vous  allez  voir  que  ce  n'est  pas  du 

tout  pour  sa  tamille 

that,  as  a  rule,  I  avoid  personalities  in  dealing  with   $2tS?dX£to 

femme  pour  le 

my    adversaries.     They    are    often    irrelevant,    and   SS^e^T 

T-»     j     •  i    •  i     j  .L    1 1  pour  une  raison 

sometimes  dangerous.     But  it  is  my  duty  to  tell  you   fen  simple  c'est 

que  le  portrait  de 

what  Sir  William  is,  as  this  has  a  direct  bearing  on   teSSSStde8^ 

enfants,  il  les  met 

the  question  of    damages  you  will   have  to  decide.   SLSS^wtdes 
Sir  William  Eden,  who  poses  as  a  patron  of  art,  is,  in   comcmuniquSA  «T 

e"gard  a  mon  adver- 

fact,  an  amateur  picture  dealer.  I  shall  show  you  ^SffS 
that  he  does  not  have  his  wife's  portrait  painted  for  moTai."e 
his  family,  or  with  any  idea  of  handing  it  down  to 
his  children.  His  commissions  are  speculations.  He 
offers  the  portraits  of  his  wife  and  children  for  sale 
and  makes  a  profit  on  them.  I  have  communicated 
certain  documents  to  my  adversary  which,  from  a 
moral  point  of  view,  are  overwhelming  in  this  connec 
tion.  The  first  of  these  is  a  letter  from  Messrs 
Boussod  Valadon.  It  is  written  from  the  London 
house  of  the  firm  to  Mr.  Webb,  Mr.  Whistler's 
solicitor,  and  is  as  follows  : 

October  8,  1897. 

DEAR  SIR— In  reply  to  your  letter  I  beg  to  state  that  shortly  after 
the  lawsuit  in  Paris,  Sir  William  Eden,  who  has  been  in  the  habit  of 
paying  us  occasional  visits  for  some  years  past,  came  into  our  gallery 
to  see  some  pictures  we  were  exhibiting.  He  spoke  of  the  lawsuit, 
and  I  mentioned  that  I  had  seen  Lady  Eden's  portrait  at  the  Salon. 
From  what  I  had  heard,  I  knew  that  Sir  William  did  not  care  for 
the  picture,  but,  knowing  its  commercial  value,  I  told  him  I  was 
ready  to  make  him  an  offer  of  £200  for  it  on  behalf  of  my  firm.  He 
declined  it,  on  the  grounds  that  the  picture  was  worth  a  great  deal 
more.  I  then  said  :  Well,  we  will  give  you  £250.  He  replied  that 
39 


he  would  not  sell  it  at  the  price.  He  did  not  offer  me  the  picture  ; 
the  offer  was  made  by  me  and  declined  by  him. 

Here  is  a  second  letter  I  wish  to  submit  to  you. 
It  is  addressed  to  the  manager  of  a  well-known  firm 
by  Sir  William  Eden  himself  : 

DEAR  SIR — I  will  send  Mr.  Swan's  picture  of  my  little  girl  to 
your  gallery  on  Saturday  next.  [Mr.  Swan  is  a  well-known  painter 
who  had  painted  portraits  of  Lady  Eden  and  of  Sir  William  Eden's 
little  daughter.] 

I  am  very  anxious  for  you  to  see  it.  It  is,  as  you  may  suppose, 
an  exceedingly  clever  work,  but  as  a  portrait  it  does  not  satisfy  me. 
Perhaps  you  will  undertake  therefore  to  dispose  of  it  for  me,  or  even 
take  it  off  my  hands. — Yours  truly,  WILLIAM  EDEX. 

To  this  letter  a  reply  was  sent,  declining  the  offer. 
Sir  William,  however,  would  not  consider  himself  as 
beaten  ;  and  accordingly  applied  to  another  firm  of 
picture  dealers,  and  I  will  read  you  the  manager's 
letter,  which  I  have  communicated  to  my  opponent : 

DEAR  SIR — About  three  years  ago  Sir  William  Eden's  picture  of 
a  little  girl,  by  Mr.  Swan,  was  on  sale  here. — Yours  £c. 

0.  ,„.„.     T.J  I  have  no  wish  to  press  too  hardly  on  Sir  William 

"Sir  William  Eden  J 

fnvoqueradevant  la    Eden,  and   the  only  argument   I    base  upon    these 

Cour  le  scrupule 

aurlkffa^ser1        documents  is  the  following  :  Sir  William  can  scarcely 

entre  les  mains  de  . ,          ~  ,   .  ,  .      , 

M.  whistler  une       urge  upon  the  Court    his  scruples  at   leaving  even 

trace  m^me  fugitive 

aU1fautrefoiseiaUi  some  slight  and  fugitive  trace  of  what  was  once  Lady 
ttfiiit  lans™™6  Eden's  portrait  iii  Mr.  Whistler's  hands.  If,  indeed, 
recocnnu0iascoufeur  as  he  states,  he  recognised  the  colour  of  Lady  Eden's 

de  la  robe  de  Lady 

Eden,  la  couleur  de  4.0 

cette  robe  adaptee 

au  corps  d'uneautre  personne  ne  peut  offenser  la  delicatesse  de  Sir  William 

etant  donn£  les  documents  que  j'ai  eu  1'honneurde  mettre  sous  vos  yetuc. 


dross,  it  is  difficult  to  believe  that  his  delicacy  would 
be  offended  by  this  colour,  adapted  to  the  person  of 
another  sitter,  when  we  consider  the  evidence  I  have 
just  laid  before  you. 

To  pass  on  to  the  question  of  damages,  gentlemen, 
you  can  judge  of  the  value  of  the  work  by  the  fact 
that  a  higher  price  has  been  placed  on  it  than  that 
asked  by  Mr.  Whistler.  You  will  recognise  the 
impropriety  of  handing  over  to  Sir  William  Eden  a 
work  of  art  by  Mr.  Whistler,  which  would  at  once 
pass  into  some  London  or  Paris  auction-room,  with 
all  the  prestige  of  notoriety  and  advertisement, 
including,  no  doubt,  quotations  from  the  judgment 
of  this  Court,  which,  I  venture  to  think,  will  not  be 
quite  what  Sir  William  Eden  hopes. 


MAlTRE  BUREAU'S  SPEECH. 

Gentlemei  the  cause  Mr.  Whistler  Las  brought 
before  you  does  not  turn  on  a  quarrel  with  Sir 
William  Eden.  Mr.  Whistler's  counsel  has  been 
careful  to  assure  us  that  money  is  no  object  here ; 
the  matter  Mr.  Whistler  wishes  to  have  decided,  the 
insult  he  desires  to  avenge,  is  the  offence  committed 
against  Art,  as  represented  by  himself. 

For  my  part,  gentlemen,  I  can  claim  no  such  lofty 
mission.  I  have  simply  to  ask  for  your  decision  in  the 
matter  of  an  unimportant  little  case  already  pronounced 
upon  by  the  Sixth  Chamber  of  the  Court.  Was  Mr. 
Whistler  commissioned  to  paint  Lady  Eden's  por 
trait?  Before  beginning,  did  he  agree  to  a  certain 
price?  Did  he,  when  the  portrait  was  finished,  or 
very  nearly  finished,  take  the  money  for  it  ?  Did  he 
exhibit  the  portrait  at  the  Salon  of  the  Champ  de 
Mars,  under  Lady  Eden's  initials  ?  When  the  exhi 
bition  closed,  did  he  refuse  to  give  up  the  picture  to 
the  person  who  had  ordered  it;  and,  during  the 
course  of  the  lawsuit  that  ensued,  did  he  mutilate 
the  portrait  by  painting  out  the  head  ?  These  facts, 
42 


gentlemen,  I  hope  to  establish  to  your  satisfaction, 
and  when  I  have  done  so,  I  have  no  doubt  that  you 
will  feel  justified  in  affirming  the  decision  of  the 
lower  Court. 

We  will  take  the  commission  for  the  portrait  first. 
It  is  perfectly  correct  that  Sir  William  Eden  first 
thought  of  asking  Mr.  Whistler  to  paint  Lady  Eden's 
portrait  in  1892.  Certain  letters  have  been  read  in 
this  connection,  which  passed  between  Sir  William 
Eden  and  Mr.  Thomson.  Mr.  Thomson  acted  as 
intermediary  between  Sir  William  and  Mr.  Whistler ; 
he  asked  the  artist  if  he  would  paint  Lady  Eden's 
portrait,  and  what  his  charge  would  be.  Mr. 
Whistler,  as  you  know,  said  ,£500.  You  know,  too, 
that  Sir  William  Eden  rejoined:  "No;  the  price  is 
too  high.  I  have  already  had  my  wife  painted  this 
year  by  Mr.  Swan,  and  I  can't  afford  such  a  large 
sum  for  the  same  thing  again.  Kindly  give  me  Mr. 
Whistler's  address,  and  if  I  have  an  opportunity  of 
meeting  him  later  on,  we  shall  perhaps  be  able  to 
come  to  terms." 

It  was  not,  in  fact,  till  eighteen  months  later,  at 
the  end  of  1893,  that  Mr.  Whistler  and  Sir  William 
Eden  were  brought  together  by  their  common  friend, 
Mr.  George  Moore.  -i  undertook  a 

.  journey  to  Paris  in 

A  letter,  as  you  know,  gentlemen,  was  written  on  ^ddtcwpjhsh°0fc^er- 
January  6,    1804.  which  will  show  what  terms  had  £Seei?  aKS 

*  J^*  £25.    All  this 

At  worry  is  the  com- 

^J  mission  I  receive 

for  my  trouble  in  the  matter !" — Mr.  Moore's  "  account™ 
Daily  Chronicle,  March  29,  1895. 


REFLECTION:  Why!  damme  sir!  he  must 
have  had  a  valentine  himself 
—the  sea-saddened  expert. 


been    agreed    upon     between     the    artist    and    the 
amateur. 

Arrangements  were  made  for  the  sittings.  Lady 
Eden  came  to  Mr.  Whistler's  studio,  and  sat  several 
times;  the  picture  was  almost  finished  on  February 
14,  1894.  This  date,  as  you  have  been  told,  is  the 
Feast  of  St.  Valentine,  a  day  on  which  it  is  cus 
tomary  to  exchange  little  presents  in  England.  On 
February  14,  accordingly,  Sir  William  Edeii  handed 
Mr.  Whistler  a  cheque  in  an  envelope,  with  the 
following  letter : 

4,  RUE  DE  PRESBOURG,  PARIS, 

February  14,  1894. 

DEAR  MR.  WHISTLER — Herewith  your  valentine — cheque  value 
one  hundred  guineas.  The  picture  will  always  be  of  inestimable 
value  to  me,  and  will  be  handed  down  as  an  heirloom  as  long  as 
heirlooms  last ! 

I  shall  always  look  with  pleasure  to  the  painting  of  it — and, 
with  thanks,  remain 

Yours  sincerely, 

WILLIAM  EDEN. 

On  the  same  day  Mr.  Whistler  acknowledged  the 
receipt  of  the  valentine  in  the  following  terms : 

no,  RUE  DU  BAG,  PARIS, 

February  14. 

MY  DEAR  SIR  WILLIAM — I  have  your  valentine.    You  really 
are  magnificent !— and  have  scored  all  round. 
I  can  only  hope  that  the  little  picture  will  prove  even  slightly 
44 


worthy  of  all  of  us,  and  I  rely  upon  Lady  Eden's  amiable  promise 
to  let  me  add  the  last  touches  we  know  of.     She  has  been  so 
courageous  and  kind  all  along  in  doing  her  part. 
With  best  wishes  again  for  your  journey, 

Very  faithfully, 

J.  MCNEILL  WHISTLER. 

"We  are  told  that  this  letter  was  purely  ironical — 
"  You  are  really  magnificent !  "  &c. — and,  further,  that 
Mr.  Whistler's  irony  is  not  to  be  translated  into  our 
language.  The  translation  I  used  at  the  first  trial  is 
said  to  have  been  very  inaccurate ;  but  it  is  admitted 
that,  if  the  terms  of  the  translation  were  not  quite 
exact,  it  nevertheless  conveyed  Mr.  Whistler's  idea 
and  intention.  I  much  regret,  however,  that  this 
letter  was  not  translated  by  M.  Stephane  Mallarme, 
like  the  other.  What  would  have  been  the  meaning 
of  an  ironical  letter  on  this  occasion  ?  Can  we  really 
accept  this  explanation  ?  There  is,  no  doubt,  a 
satirical  touch  in  the  phrase,  "  You  are  really  magni 
ficent  !  "  but  the  rest  of  the  letter  is  perfectly  friendly, 
and  promises  the  completion  of  the  work,  saying  that 
only  a  few  finishing  touches  remain  to  be  added,  and 
going  on  to  pay  a  tribute  to  the  kindness  and  patience 
displayed  by  Lady  Eden.  The  terms  of  the  signature, 
too,  are  cordial. 

The  next  day  there  was  a  discussion  between  the 
artist  and  Sir  William  Eden.  Two  accounts  of  the 
45 


interview  have  been  drawn  up.  The  first  is  con 
tained  in  my  learned  friend's  speech,  which  has  been 
printed.  He  has  been  good  enough  to  send  me  a 
copy.  But  we  have  another  valuable  document,  with 
which  to  compare  the  account  given  to  the  judges  in 
the  first  trial.  This  is  an  "  interview,"  signed  by 
Mr.  Whistler  himself  after  the  trial.  There  is,  as  you 
will  see,  gentlemen,  some  discrepancy  in  the  texts. 
This  is  the  version  given  by  my  learned  friend  : 

"  The  artist  received  his  noble  client  at  the  door  of 
the  studio,  and  did  not  ask  him  to  come  in.  The 
following  dialogue  took  place  between  them  :  '  I  have 
received  a  letter  from  you  that  I  do  not  understand, 
a  very  rude  letter.' — ;  Impossible,  I  never  write 
such  things.' — {  Well,  but  what  do  you  mean  by  "  I 
have  received  your  valentine  "  ? ' — '  You  send  me  a 
valentine,  I  acknowledge  it  politely.' — *  But  you  say : 
"  You  are  really  magnificent  "  ? ' — *  Do  you  mean  to 
say  you  are  not  ?  ' — '  I  consider  your  letter  insulting  ! ' 
Hereupon  Sir  William  Eden  began  to  argue  about  the 
maximum  and  the  minimum — the  100  or  150  guineas 
agreed  upon,  and  ended  by  saying  that  a  man  would 
be  a  fool  to  pay  more  for  a  thing  when  he  could  get  it 
for  less." 

You  see,  gentlemen,  in  what  a  ridiculous  light  Sir 
William  Eden  would  appear  if  he  had  really  said 
this.  This  is  the  version  given  at  the  first  trial. 


Let  us  now  take  Mr.  Whistler's  own  version. 
After  the  first  trial  Mr.  Whistler  was  interviewed,  as 
I  have  already  mentioned.  His  modesty  is  not 
alarmed  by  the  interviewer.  The  result  was  a  long 
and  very  well  written  article  in  the  Figaro.  I  will 
spare  you  the  introductory  portrait  of  Mr.  Whistler, 
gentlemen. 

"  I  saw  Mr.  Whistler  yesterday,  and  he  gave  me 
a  detailed  account  of  this  strange  and  comic  story, 
from  which  a  certain  amount  of  ridicule  cannot  fail 
to  attach  to  some  one  or  the  other,  I  will  not  say 
who.  .  .  ." 

Then  follows  the  tale  you  have  already  heard. 
Mr.  Whistler  goes  on  to  explain  that,  once  at  work 
upon  the  portrait,  he  carried  it  a  good  deal  farther 
than  he  at  first  intended,  the  first  idea  having  been 
that  he  should  only  make  a  sketch.  Listen  to  this : 
"  I  was  carried  away  by  my  picture ;  this  is  not 
unusual  with  artists,  you  know."  The  Court  was 
told  that  Sir  William  Eden  haggled  about  the 
price.  In  the  newspaper,  on  the  contrary,  we  have 
Mr.  Whistler's  testimony  that  Sir  William  behaved 
like  an  honourable  man.  He  had  received  an 
equivocal  letter,  and  he  asked  for  an  explanation. 
When  he  perceived  that  the  painter's  irritation  was 
probably  caused  by  dissatisfaction  with  the  price, 
how  did  he  act  ?  "  Give  me  back  my  cheque,  and 
47 


Tardy  generosity, 
in  flagrant  form  of 
hasty  hush  money  1 
— tout  bonnement  ! 
A  grotesque  spec 
tacle  of  panic- 
stricken  gentility, 
never  to  be  for 
gotten. 
See ' '  Encountered." 


*  See  letter  in 
reply  to  Q.C., 
page  22. 


See  "Fog" 
"A  Ray.' 


The  audacity  is 
yours,  r.h-r  Maitre  t 
—  mes  compliments  1 


I  will  send  you  one  for  150  guineas."  You  know 
with  what  brutality — or  humour,  as  we  are  told  it 
was — Mr.  Whistler  replied. 

However  this  may  be,  one  thing  is  clearly  estab 
lished.  In  spite  of  the  declarations  made  in  the  first 
trial,  some  doubt  might  have  been  felt,  after  reading 
Mr.  Whistler's  letter  and  the  interview,  as  to  whether 
he  actually  took  the  money.  He  had  the  audacity  to 
state,  in  a  letter  to  the  newspapers,  that  he  had  never 
used  the  cheque.*  Now  the  truth  is  this.  The  cheque 
was  given  him  on  February  14,  1894.  It  was  cashed 
the  next  day.  The  sum  in  question  was  never 
returned,  and  never  offered  to  my  client.  My  learned 
friend  affirms  that  the  money  was  placed  at  our 
disposal.  I  am  not  insisting  on  a  legal  offer;  Mr. 
Whistler  cannot  be  expected  to  understand  the 
intricacies  of  the  law.  But,  as  a  fact,  Mr.  Whistler 
made  no  attempt  to  repay  the  100  guineas.*  It  is 
true  that  Mr.  Whistler  finally  instructed  his  London  DEAR  SIR, 

We  are  gla 

solicitor  to  offer  us  the  money.  But  when  ?  On 
November  9,  1894. 

MAITRE  BEURDELEY  :  The  day  after  the  summons 
had  been  served. 

MAITRE   BUREAU  :     Ten  months    after   the 


Draft  .£105  sent 
to  Paris  Feb.  20,1893 

—  mislaid—  found 
among  documents, 
like  the  Talent  in  its 
napkin,  after  trial. 

—  So  does  the 
course  of  true  law 
never  run  smooth, 
and  eternal  blunder 
waits  upon  success  ! 
That  the  gods  may 
temper,  to  the  one 
they  love,  intoxi- 
eating  triumph 
with  refining  dis- 
appointment. 


pay 


ment. 


39  New  Broad  St  , 
London,  E.G. 
Oct. 

d  to 

receive  the  original 
draft  dated  soth 
Feb.  1895  found  in 
the  Dossier  papers 
you  have  just  re 
ceived  from  your 
advocate  in  the 
Cour  d'Appel. 
This  is  the  draft 
which  we  on  that 
day  obtained  from 
the  London  & 
Westminster  Bank, 
Ltd.,  who  drew  on 
their  agents, 
Messrs.  Mallet 
Freres  &  Cie  of 
Paris,  for  .£105  that 

Mr.  Whistler   had  expressed   a  wish   to  add   a  few  SflfiMK10 

cate.    We  trans- 

48  milled  it  according 

to  your  instructions 
JL.  a  letter  dated  the  2Oth  Feb.  1895  with  directions  as  follows  : 

"  Mr.  Beurdeley  has  asked  trs  to  forward  you  £105,  being  the  amount  which  Mr.  Whistler 
paid  to  us  on  the  9th  Nov.  last,  and  which  we  then  offered  to  Sir  W.  Eden's  solicitors,  and 
which  we  subsequently  sent  them  on  the  i4th  Nov.,  and  they  returned  to  us  on  the  isth  Nov. 
Mr.  Beurdeley  has  copies  of  all  the  letters  that  show  this.  We  have  sent  him  the  original 
ietters  from  Messrs.  Watkins  Baylis  the  solicitors  of  Sir  W.  Eden. 

•'  When  your  Counsel  stated  the  draft  was  not  to  be  found,  it  was  all  the  while  among  the 
papers,  but,  in  its  transit  from  Court  to  Court,  had  evidently  been  overlooked. 

"On  sth  Feb.  1898  we  obtained  from  the  London  &  Westminster  Bank  the  cash  for  the  draft 
upon  giving  them  an  indemnity  in  respect  of  its  loss,  and  remitted  this  amount  for  the  payment 
in  ihe  suit. 

"Yours  very  faithfully,  GEO.  &  WM.  WEBB.- 
"J.  McNeil  Whistler.  Esq.,  8  Fitzroy  St.,  Fitzroy  Square." 


What  happened  after  this  scene  of  February  14  ? 


finishing  touches  to  the  portrait.  He  did  not  consider 
it  finished.  Accordingly,  on  March  30,  1894,  Lady 
Eden  wrote  to  the  artist  in  the  following  terms  : 

"  DEAR  MR.  WHISTLER, 

"  When  shall  I  come  for  my  last  sitting  ? 
Any  day  after  Monday  will  suit  me.  You  see  I  have 
changed  my  address." 

Were  these  the  relations  of  people  who  had 
quarrelled  ? 

MAITRE  BEURDELEY  :  You  have  no  answer  to  that 
letter,  have  you  ? 

MAITRE  BUREAU  :  No.  Lady  Eden  went  to  the 
studio ;  the  last  sitting  was  given.  .  .  . 

MAITRE  BEURDELEY  :  No. 

MAITRE  BUREAU:  Do  you  dispute  this  statement, 
then  ?  The  picture  was  sent  by  Mr.  Whistler  to  the 
Salon  of  the  Champ  de  Mars,  and  exhibited  under 
No.  1 187  as  :  "  Brown  and  Gold.  Portrait  of  Lady  E." 
It  was  exhibited  together  with  impressions  of  the 
same  kind,  called  respectively,  "Violet  and  Silver," 
"  Dark  Blue  and  Silver,"  "  Blue  and  Violet." 

We  have  said  that  the  portrait  was  exhibited  with 
our  consent— Mr.  Whistler  will  deny  it— but  at  least 
with  our  tacit  consent. 

I  fancy  Mr.  Whistler,  who  is  so  well  armed  with 
legal  theories,  will  hardly  have  the  audacity  to  main- 
49  D 


tain  that  an  artist,  having  painted  a  woman's  portrait, 
has  a  right  to  exhibit  it  without  her  consent  and 
that  of  her  husband.  At  any  rate,  gentlemen,  this 
fact  is  clearly  established.  Mr.  Whistler  exhibited 
the  picture.  The  Salon  was  closed.  And  on  October  10, 
1894,  a  letter  was  written  requesting  Mr.  Whistler 
to  send  home  the  picture.  No  answer  was  received. 
A  second  letter  was  written.  Again  there  was  no 
answer.  Then  Sir  William  Eden,  who  was  in  London, 
went  to  his  solicitor  and  explained  the  matter.  "  I 
paid  for  the  portrait;  it  has  been  finished  and 
exhibited,  and  I  can't  get  it  sent  home." 

Before  taking  proceedings,  the  solicitor  wrote  to 
Mr.  Whistler,  in  perfectly  courteous  terms. 

There  was  no  answer.  The  London  solicitor  then 
wrote  to  his  agents  in  Paris,  Messrs.  Sewell  and 
Vaughan,  who  sent  a  very  polite  letter  to  Mr. 
Whistler.  They  were  convinced  there  had  been  some 
misunderstanding. 

Still  no  answer.  Or  rather,  there  was  an  answer 
of  a  sort.  Receiving  no  letter,  Messrs.  Sewell  and 
Vaughan  sent  a  clerk,  whom  Mr.  Whistler  turned 
out  of  doors  cavalierly  enough.  The  suit  was  then 
instituted. 

My  learned  friend  makes  it  a  reproach  to  Sir 
William  Eden  that  he  has  constantly  changed  his 
attitude  in  the  course  of  this  suit.  We  shall  show 


who  is  responsible  for  the  different  phases  of  the 


It  began  with  an  application  from  us  for  the  delivery 
of  the  portrait,  for  at  first  we  were  ignorant  of  what 
Mr.  Whistler  has  gradually  revealed  to  us.  It  was 
objected  that  this  was  an  exceptional  case.  Mr. 
Whistler,  who  is  nothing  if  not  ingenious,  asked  us 
for  a  guarantee  judicatum  solvi.  He  had  forgotten 
that  he  is  a  foreigner.  He  did  not,  however,  insist 
on  this  point. 

The  day  before  the  hearing  we  received  a  very 
unexpected  notice  from  Mr.  Whistler,  to  the  effect 
that  he  had  painted  out  Lady  Eden's  head,  and 
intended  to  substitute  the  head  of  another  person  j 
and  further,  that  he  meant  to  retain  the  general 
arrangement  of  the  picture. 

I  must  ask  the  Court  to  bear  in  mind  this  first 
affirmation  of  Mr.  Whistler's  on  February  25,  1895, 
the  day  before  the  hearing,  to  the  effect  that  the 
only  modification  he  had  made  in  the  portrait  was 
the  painting  out  of  the  head.  Then  we  are  told  that 
Mr.  Whistler  is  a  distinguished  painter;  that  Sir 
William  Eden's  behaviour  to  him  was  altogether 
extraordinary,  and  that  on  this  account  he  refused 
the  portrait. 

Confronted  with  this  new  situation,  with  this 
mutilation  of  the  portrait,  of  which  we  had  known 
Si 


nothing  before,  we  were  necessarily  obliged  to  modify 
our  attitude.  We  only  demanded  the  delivery  of  the 
portrait  because  we  believed  it  to  exist  in  the  final 
form  given  it  by  the  artist,  who  himself  described  it 
as  "a  little  masterpiece."  We  put  forward  a  new 
plea,  asking  for  damages.  We  said  that  as  our 
property  had  been  tampered  with,  we  demanded 
compensation. 

But,  gentlemen,  Mr.  Whistler  had  other  surprises 
in  store  for  us.  Xhe  case  came  on  on  February  27. 
The  Court  ordered  the  portrait  to  be  produced  in  the 
Chambre  du  Conseil,  and  the  parties  to  appear.  Then 
what  did  we  find  ?  Not  only  that  the  face  or  the 
head  had  been  painted  out,  but  that  another  person's 
head  had  been  substituted  for  that  of  Lady  Eden. 
It  will  be  interesting  to  remember  that  Sir  William 
and  Lady  Eden  had  no  difficulty  in  declaring  the 
picture  they  saw  to  be  the  quondam  portrait  of  Lady 
Eden.  One  thing  only  had  been  modified,  and  that 
was  the  head.  There  was  the  same  sofa,  there  were 
the  same  accessories.  To  these  a  pot  of  flowers  had 
been  added  in  the  shade  to  the  right.  But — and  this 
is  another  essential  point — the  dress  and  the  various 
accessories  of  the  costume  had  not  been  touched. 
All  that  had  been  changed,  therefore,  was  the 
head. 

Clearly,  gentlemen,  we  were  obliged  to  change  our 
52 


ground,  in  face  of  these  new  revelations.     It  cannot 
be  made  a  reproach  to  us  that  we  did  so. 

We  then  returned  to  Court,  when  another  incident 
occurred  to  which  I  must  draw  your  attention.  The 
picture  was  brought  with  a  glass  over  it.  The  Presi 
dent,  to  whom  I  had  pointed  out  the  freshness  of  the 
paint  on  the  face,  begged  Mr.  Whistler  to  remove  the 
glass.  He  replied  that  this  would  be  very  difficult. 
It  proved  perfectly  easy.  Two  nails  were  pulled  out 
and  the  glass  was  removed.  The  President  then 
asked  Mr.  Whistler  to  rub  his  handkerchief  over  the 
picture,  saying,  "  You  declare  the  picture  to  be  an 
old  one ;  you  say  the  alteration  of  the  face  was  not 
done  recently.  This  is  asserted  in  your  last  pleadings. 
There  can  be  no  harm,  therefore,  in  doing  as  I  wish." 

Mr.  Whistler  accordingly  rubbed  very  hard  all 
over  the  picture,  except  on  the  face.  The  alteration, 
gentlemen,  had  been  made  just  before  the  picture 
was  brought  into  the  Chambre  du  Conseil. 

MAITRE  BEURDELEY  :  You  did  not  call  my  attention 
to  this  in  the  Chambre  du  Conseil. 

THE  PRESIDENT  :  We  really  cannot  go  into  what 
happened  in  the  Chambre  du  Conseil. 

MAITRE  BUREAU  :  But  my  learned  friend  says  I  did 
not  call  his  attention  to  this. 

THE  PRESIDENT:  Continue  your  speech,  if  you 
please,  Maitre. 

53 


MAITRE  BUREAU  :  Certainly,  especially  as  the  news 
paper  I  have  in  my  portfolio  will  answer  this  charge. 
When  we  returned  to  the  Court,  I  took  care  to  ask 
for  a  public  statement  of  what  had  occurred  in  the 
Chambre  du  Conseil, 

These,  gentlemen,  are  the  facts  upon  which  the 
judgment  now  submitted  to  you  was  given. 

Have  our  opponents  introduced  any  new  elements 
into  the  case  ?  Not  any.  A  letter  from  Goupil's 
Manager  has  been  put  in,  which  shows  that  about 
three  years  ago  Sir  William  Eden  wanted  to  sell  a 
portrait  ot  his  little  girl.  The  letter  states  the 
reason.  The  portrait  was  not  a  satisfactory  likeness. 
What  bearing  can  this  incident  possibly  be  made  to 
have  on  the  present  suit  ? 

The  Manager  further  affirms  that  after  judgment 
had  been  given  for  him,  Sir  William  Eden  went  to 
the  Goupil  Gallery  in  London,  and  that  a  conversa 
tion  took  place  between  himself  and  Sir  William  on 
the  subject  of  the  lawsuit,  in  the  course  of  which 
Goupils  offered  to  buy  the  picture  for  £200.  The 
Manager  adds  that  he  increased  the  sum  to  ^250, 
and,  indeed,  he  could  well  afford  to  increase  his 
terms.  And  why  ?  Sir  William  Eden  had  no  idea 
of  selling  the  picture,  and  of  course  refused  the  offer. 
It  was  not  that  he  thought  the  sum  mentioned  fell 
short  of  the  value  of  the  picture.  It  was  that  he 
54 


would  not  allow  what  had  been  his  wife's  portrait, 
the  picture  to  which  public  attention  had  been  drawn 
in  so  many  articles  and  interviews,  to  become  a 
medium  for  the  advertisement  for  which  Mr.  Whistler 
is  so  eager:  This  is  why  Sir  William  Eden  would  not  * 

to  the  firm,  p.  40. 

part  with  the  portrait. 

Besides,  notice  of  appeal  had  been  given.  What 
would  have  been  Sir  William  Eden's  position  had  he 
made  a  bargain  with  the  Goupils  ?  This,  however, 
may  be  put  aside.  What  we  have  to  deal  with  is  the 
eternal  question  on  which  the  lower  Court  gave 
judgment.  Was  the  commission  accepted,  and  was  it 
executed  ?  In  this  connection  I  have  to  answer  my 
learned  friend,  who  maintains  that  you  cannot  ad 
judge  the  picture  to  Sir  William  Eden,  because  it  is 
an  imperfect  and  incomplete  creation  of  the  artist's 
brain.  But,  gentlemen,  we  need  not  ask  what  the 
portrait  is  now.  What  we  must  ask  is,  was  the 
picture  completed  at  a  given  moment  ?  Certainly  it 
was,  as  we  know  from  Mr.  Whistler  himself.  It  was 
finished  so  much  to  its  author's  satisfaction  that  he 
did  not  hesitate  to  describe  it  to  interviewers  as  "  a 
masterpiece." 

I  admit  that  a  painter  who  has  accepted  a  com 
mission  cannot  be  required  to  deliver  a  work  with 
which  he  is  dissatisfied.  But  in  the  present  case  he 
was  completely  satisfied.  We  may  take  it  as  clearly 
55 


proved  that  the  picture  was  finished,  and  brought  to 
such  a  state  of  perfection  that  it  was  actually  exhi 
bited  under  the  initials  of  my  client.  It  follows, 
gentlemen,  that  the  work  must  be  handed  over  to  us, 
being,  as  it  is,  our  property. 

We  must  now  consider  for  a  moment  the  ingenious 
intervention  of  Mrs.  Hale  in  the  first  suit.  She  does 
not  figure  in  the  appeal,  but  we  are  told  that  the  re 
painted  head  in  the  picture  is  a  preliminary  sketch 
for  a  portrait  of  Mrs.  Hale. 

Now,  if  the  picture  was  Sir  William  Eden's  pro 
perty,  what  are  the  consequences  ?  Mr.  Whistler  has 
wholly  or  partially  destroyed  the  work ;  it  does  not 
much  matter  which.  He  certainly  destroyed  it  par 
tially,  as  we  know  from  the  statements  made  in  the 
judgment,  statements  made  by  the  judge  himself  in 
the  Chambre  du  Conseil.  But,  on  the  other  hand,  it 
is  still  the  same  picture,  the  very  same  object,  and  has 
never  ceased  to  be  the  property  of  Sir  William  Eden. 

Under  these  circumstances,  let  us  now  consider  the 
damages  we  may  claim  for  the  mutilations  inflicted  on 
the  portrait. 

Of  what  have  we  been  deprived  ?  Of  a  picture 
which,  before  you  mutilated  it,  was  a  portrait  of 
Lady  Eden.  What  remains  to  us  ?  The  wreck  of 
Lady  Eden's  portrait  This  is  the  injury  of  which 
we  complain. 

56 


One  of  your  chief  grievances  against  the  first  judg 
ment  is  that  it  really  went  too  far  when  it  ordered 
the  handing  over  of  the  portrait,  the  repayment  of 
the  money,  and  further,  1000  francs  damages.  My 
learned  friend  is  not  quite  candid  as  to  the  terms  of 
the  judgment.  Accepting  the  fact  that  the  picture 
belongs  to  Sir  William  Eden — a  fact  which  I  think 
admits  of  no  discussion — the  judges  ordered  it  to  be 
given  up  to  the  owner.  This  was  the  logical  conse 
quence  of  the  statement  the  judges  had  made,  and 
were,  indeed,  obliged  to  make. 

"  Whereas,  on  the  first  count,  Whistler  is  ordered 
to  restore  the  100  guineas  by  way  of  damages." 

On  the  second  count  they  proceeded  to  award  us 
another  1000  francs  damages,  in  all  3625  francs.  It 
is,  therefore,  a  mere  quibble  to  say  that  Mr.  Whistler 
was  condemned  to  return  the  price  of  the  picture 
and  the  picture  as  well,  and  in  addition  to  pay 
damages.  What  the  judges  really  ordered  was  the 
handing  over  of  the  picture,  and  the  payment  of 
damages  to  the  amount  of  3625  francs,  reducible,  as 
I  have  shown  above,  to  two  elements. 

But,  gentlemen,  as  I  have  said  before,  it  is  not  the 
money  question  by  which  Mr.  Whistler  is  so  much 
moved. 

Mr.  Whistler's  real  object  is  notoriety.  What  he 
wants  is  to  have  his  name  brought  prominent!^  before 
57 


the  public ;  to  see  it  in  print ;  to  call  attention  to 
himself  and  his  works.  In  a  letter  which  has  been 
read  you  he  tells  us  plainly  what  his  object  was, 
why  he  raised  the  question,  why,  though  he  had  no 
intention  of  giving  up  the  picture,  he  nevertheless 
retained  the  cheque.  "  It  was  to  make  Sir  William 
Eden  come  and  claim  it  here  before  all  Paris !  " 
This  was  what  Mr.  Whistler  wished  to  bring  about. 

Mr.  Whistler  can  have  no  illusions  as  to  the  legal 
aspect  of  the  case.  He  is  too  intelligent  and  too  well 
informed  for  that.  But  he  wishes  all  the  Press  to 
ring  with  this  affair. 

This  is  not  the  first  time,  gentlemen,  that  Mr. 
Whistler  and  his  works  have  appeared  in  Court.  Some 
years  ago  Mr.  Whistler  exhibited  a  picture  of  "A 
Thames  Fog."  Mr.  Ruskin  had  the  bad  taste  to  say 
that,  on  this  occasion,  Mr.  Whistler,  whose  talent  he 
fully  recognised,  (!)  was  laughing  at  the  public.  Mr. 
Whistler  brought  an  action  against  Mr.  Ruskin.  The 
judge  ordered  the  picture  to  be  produced.  It  was 
submitted  to  an  expert,  and  the  judge  asked  what  he 
thought  of  it.  The  expert  turned  the  picture  over, 
bad  and  asked  the  name.  "  A  Thames  Fog."  "  The  fog 
sYeS-'tedhis  is  very  well  done,"  he  said,  "  for  I  really  can't  see 

familiar  clearly  no 

anything.       Mr.  Whistler  lost  his  case. 

But  Mr.  Whistler  is  capable  of  arraigning  Nature 
herself,  and  might  have  done  so,  had  she  not  shown 

58 


signs  of  grace.  Sometimes  Mr.  Whistler  perceives 
that  Nature  is  not  quite  as  he  represents  her,  and  he 
is  displeased.  But  one  day  Nature  repented.  Some 
one  pointed  out  a  landscape  very  like  those  he  is  in  we  know  the 

•*•  delightful  story  t— 

the  habit  of  painting  to  Mr.  Whistler.  "  Yes,"  he 
observed,  "  Nature  is  really  creeping  up  !  In  con- 
sideration  of  this  progress,  no  doubt,  Mr.  Whistler 

has  let  her  off. 

,  .  «,i  11      i  •     >  i  •  -VT- 

Such,  gentlemen,  is  the  appellant  in  this  case.  You 

have  heard  his  defence,  and  the  extenuating  circum- 
stances — for  as  such  I  suppose  we  must  accept  the 
points  insisted  on  by  my  learned  friend — which  have 
been  urged  on  his  behalf.  You  are  to  decide  a  case 
as  to  the  legal  aspect  of  which  there  can  be  no 
manner  of  doubt,  and  I  am  convinced  that  you  will 
confirm  the  judgment  against  which  the  appeal  has 
been  made. 


CONCLUSIONS  OF  THE  AVOCAT-G^NERAL  DE  LA 
REPUBLIQUE,  WATCHING  THE  CASE  ON 

BEHALF  OF  THE  GOVERNMENT 

MESSIEURS, 

Before  passing  the  main  facts  of  the  case 
in  rapid  review,  I  crave  the  indulgence  of  the  Court 
to  let  me  say  a  few  words  about  Mr.  Whistler  him 
self,  which  may  facilitate  your  examination  of  the 
question  submitted  to  you,  and  help  you  to  a  con 
clusion  on  the  points  at  issue. 

According  to  his  admirers,  and  they  are  many,  Mr. 
Whistler  enjoys  a  great  reputation  in  London.  A 
critic,  who  is  a  warm  admirer  of  Mr.  Whistler  and 
his  works,  seeking  to  give  some  idea  of  Mr.  Whistler's 
fame  in  England,  makes  the  following  curious  state 
ment  in  a  work  I  shall  have  occasion  to  quote  again : 
"  A  letter  addressed  *  James  Whistler,  London,'  would 
reach  its  destination  safely  and  rapidly  through  the 
noisy  labyrinth  of  chaos  and  mystery  that  makes  up 
the  vast  city." 

Yet  Mr.  Whistler,  now  so  widely  known  in  Lon 
don,  was  not  always  the  object  of  universal  admira- 
60 


tion  on  the  other  side  of  the  Channel,  and  there  was 
a  time,  too,  when  his  works  were  hardly  understood 
in  .France.  He  made  his  debut  among  us  in  1863, 
when  he  sent  a  picture  he  called  "  The  White  Girl " 
to  the  Salon.  This  picture  was  rejected  by  the  jury, 
and  Mr.  Whistler  sent  it  to  the  Salon  des  Refuses, 
where  it  found  a  place  among  the  works  of  men  now 
universally  acknowledged  as  masters — Manet,  Degas, 
Cazin,  and  others.  Mr.  Whistler  long  bore  our  Salon 
a  grudge  on  this  account,  and  he  punished  it  by  an 
abstention  of  nineteen  years.  In  1882  he  made 
his  triumphant  entry  into  the  Salon  with  another 
portrait,  and  in  1883  ne  exhibited  the  portrait 
of  his  mother,  to-day  in  the  museum  of  the 
Luxembourg. 

But  I  will  not  further  pursue  this,  gentlemen.  I 
should  be  sorry  to  make  a  vain  display  before  the 
Court  of  artistic  erudition,  the  more  so  as  all  this  has 
no  direct  bearing  on  the  facts  of  the  case.  I  only 
wish  to  show  you  that  Mr.  Whistler,  who  had  once 
to  combat  the  jury  of  the  Salon,  and  who  had,  it 
seems,  good  reason  to  complain  of  his  treatment  here, 
now  enjoys  a  reputation  at  least  as  great  in  France 
as  in  England.  He  is  an  officer  of  the  Legion  of 
Honour ;  his  portrait  of  his  mother,  the  portrait 
which  signalised  his  return  to  the  Salon  in  1883,  has 
been  in  our  national  collection  two  or  three  years. 
61 


He  is  now  a  man  widely  known,  and  very  honourably 
known,  among  us. 

So  far,  gentlemen,  I  have  spoken  only  of  Mr. 
Whistler's  portraits,  and  I  shall  have  little  occasion 
to  mention  his  other  works.  But  he  is  not  only  a 
painter  of  figures  and  portraits.  He  paints  land 
scapes  too,  and  these  landscapes  he  calls  "  Harmonies 
and  Symphonies." 

I  have  told  you,  gentlemen,  that  French  picture- 
lovers  recognised  the  mistake  made  in  1863,  that  the 
jury  of  the  Salon  recognised  it,  that  the  State  itself 
atoned  by  covering  Mr.  Whistler  with  honours,  and 
throwing  open  the  doors  of  our  national  museum  to 
him.  It  would  even  seem  as  if  Nature  herself, 
following  in  the  train  of  the  State,  were  anxious  to 
to  give  a  flattering  reception,  in  France,  to  Mr. 
Whistler ! — and  this  with  a  coqueterie  that  would 
coincide  with  the  discussions  of  this  case !  For, 
during  the  last  few  days  we  seem  to  have  been 
living  in  paintings  by  Whistler,  and  I  myself,  on  my 
way  to  this  Court,  have  perceived  with  wonder, 
unfolded  in  the  mist  vaguely  recalling  the  fogs  of  the 
Thames,  liis  "  Symphonies  in  pale  gold  and  blue  "  all 
around  us ! 

Such,  then,  is  Mr.  Whistler,  and  as  such  it  was 
necessary  that  you  should  know  him.  I  will  add  but 
one  touch  to  the  portrait.  Mr.  Whistler,  who  has 
62 


now  achieved  in  no  uncertain  fashion  a  universal 
reputation,  is  lucky  enough  to  have  a  few  remaining 
enemies.  There  are  critics  who  misunderstand  him, 
certain  amateurs  who  execrate  him,  and  the  general 
public  who  throng  to  our  annual  exhibitions  do  not 
always  appreciate  him.  He  is  fortunate  enough  to  be 
much  discussed ;  but  if  some  are  indifferent  or  hostile, 
these  are  balanced  by  others  who  are  enthusiastic  in 
their  admiration.  Then,  gentlemen,  like  all  persons 
who  hold  a  prominent  position,  he  finds,  following  in 
the  train  of  the  critics  and  enlightened  amateurs 
whose  artistic  opinion  is  founded  on  special  know 
ledge,  a  host  of  those  whom  the  English  call  "  snobs," 
persons  who  are  admirers  or  detractors  according  to 
their  temperament,  the  fashion  of  the  day,  the  whim 
of  the  moment;  and,  in  addition  to  all  these  pre 
determined  admirers  or  detractors,  the  eclectics,  those 
who  delight  in  a  fine  picture,  no  matter  who  painted 
it,  who,  unbiased  by  any  personal  feeling,  and  with 
no  special  taste  for  fogs  and  mists,  will  always 
admire  a  fine  Whistler  as  heartily  as  they  admire  a 
landscape  by  Francois  or  Harpignies.  These  are  the 
wise  men  who  feast  their  eyes  on  a  beautiful  work 
of  art,  whatever  its  origin,  and  who  would  scorn  to  be 
governed  by  the  admirations  or  the  detractions  of 
convention. 

I  have  already  said,  gentlemen,  and  I  repeat  it,  that 
63 


this  rapid  sketch  is  not  without  value,  though  it  may 
seem  to  lie  somewhat  outside  the  main  issue.  It  will 
serve,  if  not  to  decide  the  point  of  law  submitted  to 
you,  at  least  to  make  Mr.  Whistler's  attitude  com 
prehensible,  and  I  will  even  go  further,  and  say,  to 
justify  it  completely.  Let  us  now  inquire  what  that 
attitude  is. 

To  begin,  then,  the  artist,  as  you  know,  does  not 
dispute  the  fact  that  he  agreed  to  paint  a  portrait  of 
Lady  Eden,  at  a  price  ranging  from  ^100  to  .£150, 
or  100  guineas  to  150  guineas,  a  sum  fixed  (if  we  can 
call  any  sum  fixed  which  fluctuated,  so  to  speak, 
between  -XTioo  and  /?ic;o)  by  a  common  friend  of  ••  M.  wimtier  n 

•^  XJ     D     /        J  discutepas 

Mr.  Whistler  and  Sir  William  Eden.     Nor  does  he  J^ 


.,  -  i      i     1  1          forme,  accept**  le 

deny  that,   pro  forma,  at  any  rate,  he  accepted  the  cheque  deioo 

•  *  livres,  qu'au  jour 

cheque  for  ;£ioo   presented  to  him  on  Valentine's  sfrwfiii^EdS' 

lui  a  remis  avec  une 

Day  by  Sir  William  Eden  with  a  courtesy  marred,  if  jg^j^Jf  qui- 
I  may  be  allowed  to  say  so,  by  a  considerable  tincture  pSSet^ 

quelque  peu 

of  calculation  and  parsimony  !  He  admits  that  after 
the  receipt  of  the  valentine  he  added  those  final 
touches  to  which  he  alludes  in  his  ironical  letter  of 
acknowledgment,  and  he  further  admits  having  ex 
hibited  the  portrait  in  1894.  .  .  . 

I   will   now,  with   your    permission,  read    you   a 

passage  or  two  from  the  critical  work  already  alluded 

to,  and   this  will  be  my  last  word  on  the  talent  of 

Mr.  Whistler,  or,  rather,  his  genius.     It  will  determine 

64 


for  you  clearly  Mr.  Whistler  himself,  and  will  enable 
you  to  understand  his  attitude.  The  first  relates 
to  the  picture  exhibited  as  "  Brown  and  Gold " — 
the  picture  which  is  the  object  of  the  present  litiga 
tion. 

"  *  Brown  and  Gold.'  A  lady  seated  on  a  sofa.  A 
marvel  of  arrangement  and  gradation  (tone  ?)." 

The  critic  then  devotes  two  pages  to  Mr.  Whistler's 

portrait  of  M.  de  M .  I  will  read  a  few  lines 

from  this  : 

"  Whistler  is  the  portraitist  of  this  subtle  person 
ality,  and  never  was  there  a  more  intimate  harmony 
between  sitter  and  painter.  The  artist  of  nocturnes 
and  harmonies,  the  creator  of  the  exquisitely  reticent 
in  portraiture,  the  wizard  of  feminine  apparitions  and 
of  intellectual  expression,  must  have  felt  the  dandy 
ism  of  M.  de  M a  strong  attraction  to  the  fund 

of  dandyism  underlying  his  own  character.  He  was 
in  sympathy  with  both  the  natural  and  artificial  in 
this  personality,  this  being  who  could  only  have 
blossomed  in  an  advanced  civilisation." 

This,  gentlemen,  is  how  a  brilliant  critic  expresses 
himself  as  to  Mr.  Whistler's  admirable  comprehension 
of  his  model.  The  passages  I  have  read  will  enable 
you  to  appreciate  the  man  whose  actions  you  must 
understand  before  you  pronounce  upon  them  from  a 
legal  standpoint.  You  must  allow  me  to  add  on  my 
65  E 


own  account  a  word  to  the  critic's  remarks.  M.  de 

M 's  portrait  was  certainly  a  most  remarkable 

work,  whatever  may  be  the  opinion  held  on  Mr. 
Whistler's  artistic  tendencies. 

Now,  gentlemen,  Mr.  Whistler,  admitting  all  the 
facts  I  have  gone  over — the  business  proposal,  the 
promise,  the  receipt  of  money,  the  exhibition  of  the 
portrait  at  the  Salon  du  Champ  de  Mars  in  1894 — 
also  admits  that,  at  the  close  of  this  same  year  (1894), 
when  Sir  William  Eden  demanded  the  portrait,  he 
refused  to  give  it  up,  and  that  when  the  law  was  put 
in  motion  to  make  him  "  execute  "  himself,  he  elected 
rather  to  "  execute  "  the  portrait  by  wiping  it  out. 

This,  gentlemen,  was  a  cool  and  deliberate  act  of 
will  on  Mr.  Whistler's  part — an  act  which  will 
explain  why  I  have  thought  it  necessary  to  speak 
somewhat  at  length  about  the  artist.  It  was  a 
logical  action  coming  from  him  —  for  he  is  Mr. 
Whistler.  And  Mr.  Whistler  is  not  alone.  He 
represents  "  Whistlerism  and  the  Whistlerians."  This 
phrase  is  not  my  own.  I  quote  again  from  the 
critic  I  have  already  cited.  He  owed  it  to  himself,  . 

*  7     lui-meme,  il  devait 

to  Whistlerism,  and  to  all  Whistlerians,  not  to  alloio 
"himself  to  be  tricked  by  Sir  William  Eden!  and 
that  was  why  he  refused  to  give  up  the  portrait. 
But,  on  the  other  hand — and  I  cannot  impress  this 
upon  you  too  strongly,  in  view  of  the  legal  question 
66 


I  now  approach  —  from  the  first  he  offered  to  return 
the  ^100.  He  fully  recognises  this  obligation  ;  he 
even,  as  you  will  remember,  bows  to  the  decision  of 
the  Court,  which  condemned  him  in  damages  to  the 
extent  of  ^40. 

What  he  revolts  against  in  the  name  of  personal 
freedom  —  of  the  freedom  of  all  artists  —  of  the  inde 
pendence  and  the  sovereignty  of  art  —  is  the  judgment 
which  condemns  him  to  deliver  the  picture  in  its 
present  state. 

Was  the  Court  justified  in  ordering  him  to  give  up 
the  picture,  or  is  Mr.  Whistler  justified  in  refusing  so  -Le  Tribunal 

a-t-il  eu  raison 

to  do  ?     This,  gentlemen,  is  the  sole  question  that  has  SSSJS?* 
been  brought  before  you.  wu«ier**ii 

raison  de  le  re- 


The  solution  of  this  question  is  the  sole  object  of 
the  appeal.     Notwithstanding  the  necessarily  general  ^ 

*    °  devant  vous  ;  c  est 

form  of  the  appeal,  you  know  that  that  is  the  only  EondecSe 

question  with    which    Mr.   Whistler's    lawyer  was  ?n"erjetTlMaire- 


concerned.     I  have  no  hesitation  in  believing  —  and 

de  cet  appel  vous 

I  say  so   at   once  —  that    the   Court   was   mistaken.   S^ue^'dcn 
The   cause   of   its   error   of   judgment  was   another  iSlavocat'de0MUp 

Whistler.    Je 

error,  upon  which  I  will  now  enable  you  to  put  your  pensser-je1ekdis 

tout  de  suite—  que 

finger.  The  Court  seems  to  have  thought  that  Iro^S"0818'65* 
the  original  contract,  an  unnamed  contract,  a  mixed 
contract,  an  obligation  to  execute  in  any  case,  became, 
at  a  given  moment,  so  entangled  as  to  constitute  a 
contract  of  sale,  and  it  was  by  applying  the  law  of 
67 


sale  to  the  relations  of  the  contracting  parties  that  it 
arrived  at  formulating  its  conclusions.  This,  gentle 
men,  I  must  point  out  to  you  clearly,  and  I  must 
therefore  read  you  three  pages  from  the  report  of 
the  judgment  delivered  by  the  lower  Court. 

"  Whereas,  say  the  first  Judges,  in  the  first  place, 
it  is  proved  that,  thanks  to  the  intervention  of 
mutual  friends,  Eden  wished  to  have  a  portrait  of 
Lady  Eden  by  Whistler,  and  Whistler  consented  to 
paint  that  portrait. 

"  Whereas,  through  the  medium  of  the  same 
persons,  the  price  of  Mr.  Whistler's  work  was  fixed 
at  between  100  and  150  guineas. 

"Whereas,  therefore,  the  agreement  having  been 
arrived  at  as  to  the  thing  and  as  to  the  price, 
Whistler  had  contracted  the  obligation  of  painting 
the  portrait  and  Eden  the  obligation  of  paying  the 
price  of  it.  .  .  .  " 

This,  gentlemen,  is  indeed  the  contract  which 
comes  into  existence  between  the  painter  and  the 
intending  purchaser  such  as  jurisprudence  has 
always  recognised  and  described  it,  as  you  will  see 
presently  from  the  single  example  which  I  will  quote 
to  you. 

"Whereas,  Whistler  fulfilled  his  obligation  and 
painted  the  portrait  of  Lady  Eden. 

"Whereas,  on  his  part,  on  the  i4th  February, 
68 


1 894,  Eden  sent  Whistler  a  cheque  for  .£105 
sterling,  representing  2625  francs. 

"Whereas  Whistler  received  the  cheque  and 
replied  to  Eden  in  a  letter,  the  first  part  of  which, 
alluding  to  the  price  sent,  and  indeed  kept,  no  doubt 
expresses  a  little  irony,  but  the  second  part  shows 
clearly  that  the  artist,  leaving  aside  the  question  of 
money,  pleased  with  his  work,  expresses  the  desire 
'that  this  little  painting  may  be  worthy  of  us  all,' 
as  he  says,  relies  upon  the  kind  promise  of  Lady 
Eden  to  permit  him  to  add  the  few  little  touches 
which  we  know  of,  compliments  his  model  'on  her 
courage  and  her  kindness,'  and  ends  with  his  best 
wishes  to  Eden. 

"Whereas,  after  this  date  of  the  i4th  February, 
1894,  the  relations  between  Eden  and  Whistler  con 
tinued  to  be  courteous. 

"  Whereas  the  latter  entirely  finished  his  work, 
and,  with,  at  any  rate,  the  tacit  consent  of  Eden,  he 
exhibited  it  at  the  Salon  in  the  Champ  de  Mars,  with 
his  other  works,  under  the  No.  1187  and  under  the 
title  '  Brown  and  Gold.  Portrait  of  Lady  E.  .  .  .  ' 

"Whereas  the  fact  that  Eden  chose,  as  regards 
price,  to  pay  the  minimum  price  fixed,  could  not 
change  the  nature  of  the  contract  entered  into 
between  Whistler  and  him. 

"Whereas  Whistler  was  under  the  strict  obliga- 
69 


:  . -j  \:   ;    :.f"-i-rr.-;  :.!if  :•::::•::.  ^^  ::  ii: 

:."-"    :.".f    v:::-f    v..i:.  :i    _:_    :v 

_. 


v-  -    -    -. 

parties  in  fodt  eras  in  *  fev  fincfc.    It  k  U 

L.--    -:    v  --    _:._   -     '.  ./,:    -.:.-         -    -.    '.-  .:-     . 
in  BBM  cm  July  4,  i  §65,  in 

!••  :.._^  ..    ••.:.. 

-----  _--  ,-  -        ^-    i-  „  3       «.  .          -     -  T 

-   -  -     -  .  _  -:     -  T  -     -  ..  T    ."•-.  ..--^-       ...-_-:  - 

1  ---    " "   ;    '...-..  -     ":..;.•_    :-i^^  ~.L-.    '---'.  .  :  '-.   '. :.    ~  '.  -. 
:::.-.-.      .:.'.     -  .-     .-••:•-;-..--     :u'i^     :: 


-:,.._    -....- 
.-     .- 


::: 


-'L    -.-, 

:- 


have  been  superseded  by  an  actual  sale,  and  by 
declaring  that  on  February  14,  1894,  the  day  Sir 
William  Eden  pronounced  himself  satisfied  with  the 
work,  and  paid  Whistler  a  hundred  guineas,  he 
became  the  owner  of  the  picture. 

What  would  be  the  result  of  the  confirmation  of 
such  a  theory  by  you,  gentlemen  ?  An  amateur,  we 
will  say,  makes  a  bargain  with  a  painter,  and  orders 
a  picture.  After  a  time,  the  amateur,  who  knows 
but  little  about  it,  is  satisfied  with  the  picture, 
perhaps  as  yet  a  mere  sketch.  He  is  in  a  hurry  to 
get  possession  of  it.  He  offers  the  price  of  it  to  the 
painter,  who  accepts  it,  thankful  to  be  paid  in  advance 
(knowing,  as  he  does,  that  sometimes  artists  are  never 
paid  at  all).  Under  such  conditions,  amateurs,  those 
whom  artists  irreverently  call  bourgeois  or  "  Philis 
tines,"  would  become  the  sole  judges  of  the  degree  of 
perfection  of  a  work  of  art,  of  its  completion  or  non- 
completion,  and  the  painter  would  have  no  voice  in 
the  matter.  An  imprudent  or  needy  artist,  who  had 
taken  his  money  before  finishing  his  picture,  would 
be  iforced  to  hand  over  an  imperfect  work,  a  work 
injurious  to  his  present  reputation,  and  still  more 
injurious  to  his  future  fame,  because  the  purchaser 
who  had  paid  would  be  the  recognised  owner  of  the 
work  in  part  and  in  whole.  In  a  word,  the  right  of 
an  artist  not  to  deliver  a  work  with  which  he  is 
72 


himself  dissatisfied   would  be  blotted  out  from  the 
records  of  custom  and  of  jurisprudence. 

The  Court  was,  I  think,  misled  by  a  special  circum 
stance  connected  with  the  suit.  I  refer  to  the  avowed  ••  n  a  trouve-  de 

mauvais  gout  le 

cause   of  Mr.  Whistler's   refusal,  which    he   himself  WSfiftdSTqai 

lui  envoie  too  liyres, 

has  never  attempted  to  disavow.     He  ret  used  because  fj?rs  <iu'u  aurait  PU 

f  lui  en  envoyer  150, 

his  self-respect  had  been  wounded    by  Sir  William  ±*r™tnTtpu 

discuter  avec  lui 

Eden.     He  considered  in  execrable  taste  the  methods  EfcaSmZ 
of  Sir  William  Eden,  who  sends  him  ^100  when  he 
might  have  sent  him  .£150,  when  at  least  he  might 
have  consulted  with  him  as  to  the  sum  between  the 
;£ioo  and  the  ^150  he  ought  to  send  him. 

As  to  the  picture  itself,  Mr.  Whistler  thought  it 
excellent,  and  exhibited  it  publicly.  The  critic  I 
have  quoted  pronounces  it  "  a  marvel  of  arrangement 
and  tone."  Mr.  Whistler  himself,  in  an  interview 
published  in  the  Figaro,  speaks  of  it  as  "  the  little 
masterpiece."  The  term  is  perfectly  correct. 

Mr.   Whistler's  refusal,   then,   to  hand   over    the 

picture  is  not  due  to  any  defect  in  the  work  itself, 

••  ce  n-est  done     by  which  his  reputation  might  suffer,  but  to  the  fact 

point  parce  que 

teLCchevK     that  he  has  a  quarrel  with   Sir   William—  between 

de  natuie  i  porter 

au!iMl"whLfi1e0riria    man  an(*  man  —  gentilhomme  ct  gentilhomme  —  gentle- 
parc^'qiT'ii'aeifune  man  and  gentleman. 

querelle  d'homme  a 

11"         The  Court  thought  this  reason  a  bad  one.     As  for 


myself,  I  feel  that  the  Court  herein  made  a  mistake. 

avec  Sir  William  » 

E-eLe  Tribunal          The  artist  is  not  even  called  upon  to  give  any  reason 

a  trouve"  que 

c'e"tait  la  une  73 

mauvaise  raison. 

J'estime  quant  i  inoi  que  le  Tribunal 

s'est  trumpe"." 


for  refusing  to  fulfil  his  contract.  He  is  within  his 
rights  if  he  refuses  to  carry  out  his  undertaking,  and 
elects  to  take  his  chance  of  having  to  pay  damages. 
This  right  is  absolute,  and  Mr.  Whistler  simply  affirmed 
his  right  when  he  refused  to  give  up  the  picture. 

Now,  messieurs,  his  opponent  would  force  him  to 
hand  it  over.  This  brings  us  back  to  my  former 
contention.  The  painter  would  be  forced  to  give 
up  a  work  which  is  comparatively  formless,  at 
least  in  the  principal  part.  I  presume  that  Mr. 
Whistler,  when  he  painted  his  harmony  in  brown 
and  gold  for  a  portrait,  intended  to  reproduce  the 
features  of  his  sitter.  But  these  no  longer  exist. 
The  "  harmony  "  still  remains,  and  a  white  patch 
in  its  midst  marks  the  place  for  the  head,  but 
Mr.  Whistler  has  deliberately  effaced  the  portrait. 
Mr.  Whistler  refuses  to  deliver  it,  though  he  accepts 
the  penalty  of  his  action.  He  is  willing  to  pay 
damages  with  interest. 

It  remains  only  to  fix  the  sum  of  this  penalty.  I 
think  he  will  have  made  sufficient  reparation  if  he 
returns  the  100  guineas,  with  5  per  cent,  interest 
from  February  1894,  and  further  pays  into  Court 
1000  francs  (^40)  damages  with  interest.  It  will  be 
unreasonable  to  object  to  this  sum  on  the  ground  of 
its  insignificance,  unless  Sir  William  Eden  is  prepared 
to  say :  "  Thanks  to  the  intervention  of  Mr.  George 
74 


"On  nc  pourrait  en  critiquer  le  chiffre  et  1'importancc 
que  dans  le  cas  oil  Sir  Eden  alleguerait  ceci  :  '  J 'avals 
eu,  grace  £  1'intervention  de  M.  Moore,  pour  100  livres 
ce  qui  en  valait  500.  Par  consequent,  je  suis  prive1,  par 
la  mauvaise  vplontd 


Moore,  I   got  for    100  guineas   a   thing  which   was  j* 

_  _         I-TTI          i       »  i  •  T     ceuvre  qui  vaut 

reallv  worth   coo.      Bv  Mr.  Whistlers   malice   and  couramment 500 

*  J  •>  livres.    Eh  bien, 

caprice  I  am  consequently  deprived  of  a  work  worth  KSfSfr*** 
currently  500  guineas.     Well,  then,  it  is  the  double,  *^££*%f£ 
the  treble,  the  quadruple  of  what  I  paid  that  I  ask  you  "«&«un,M 

semble-t-il,  le  calcul 

fn  fiPPnvrl  >mt>  f  "  qu'avait  fait  M. 

10  OCCOra  me  .  Eden  lorsque.  en 

Some  such  argument  seems  to  have  been  in  Sir  &&£&<* i**^ 

frs.  de  dommages- 

William  Eden's  mind  when,  before  the  first  Court,  he  BSS^«W 
claimed  10,000  francs  damages  for  the  loss  of  a  por-  aSolrV.  environay 

II  n'a  pas  os<£ 

trait  which  cost  him  about  2500.  He  has  not  ventured  agSrSraStfe 
to  put  forth  again  such  theory  before  this  Court — and  *yff£u**' 
I  understand  him  marvellously  well ! 

To  resume,  then,  gentlemen,  I  confirm  the  judg 
ment  of  the  lower  Court  as  regards  the  allocation 
of  damages  and  the  refunding  of  the  TOO  guineas. 

I  reverse  it  as  regards  Mr.  Whistler's  obligation  to 
give  up  the  picture  to  Sir  William  Eden.  Under 
these  conditions,  if  the  Court  is  with  me,  it  will  have 
to  modify  those  resolutions  which,  in  my  opinion,  are 
unacceptable. 


75 


JUDGMENT. 


ARRET. 

^C'WEntendu,es 
avouds  et  avocats 
dans  leurs  conclu- 


jugememendaie 

du  20  Mars.  1895, 


THE  COURT, 


Having  heard  the  counsels  for  plaintiff  and 
defendant,  and  the  summing-up  of  the  Avocat- 
General,  and  being  called  upon  to  pronounce  judg 
ment  in  the  appeal  made  by  the  defendant,  Whistler, 
against  the  decision  of  the  Civil  Tribunal  of  the  Seine, 

dessufri'.1tas materiality   given  March  20,  1895 

moMsd'eTpremiers       Inasmuch  as  the  agreement  described  in  the  iudg- 

juges;  ^ 

tionujurid[qaupepr^cia"  m©nt   against  which  the  defendant  appeals  consisted 
les  fa"tss  ra^portds3    merely  of  a  contract  to  execute,  making  the  defendant 
liable,  in  case  of  non-execution,  for  damages 

And  inasmuch  as  William  Eden  was  never,  at  any 
moment,  the  owner  of  the  picture  for  which  his  wife 
sat,  and  merely  asserts  that  the  painter,  actuated  by 
caprice  or  amour  propre,  refused  to  give  up  the  por 
trait  in  question  as  required 

Inasmuch  as  Whistler,  having  failed  to  keep  his 
engagement,  as  above  stated,  has  to  return  the  2625 
ceiurquije'iui  avait  francs  (100   guineas)  he   accepted  from   Eden,  with 

commande  le  por-  »  ' 

five  per  cent,  interest  thereupon  from  the   day  of 
76 


par  le  jugement 
dont  est  appel  ne 
constituaient 
qu'une  simple 
obligation  de  faire 
Se  resolvant,  en  cas 
d'inexdcution,  en 
dommages  et 
inteVSts  ; 

Conside'rant  en 
outre  que  William 
Eden  riestjamais 
et  auctin  moment 
devtnu  proprie'- 
taire  du  tableau 
reprtsentant  la 
figure  ae  safemme; 
qu'L  est  seulement 
ave"re"  que  le  peintre 
par  caprice  ou  par 
amour  prppre  s  est 
refuse1  a  livrer  a 


commane  le  por 
trait  dont  s'agit  ; 

ConsideVant  des 
lors  que  Whisller, 
s'eiant,  comme  il 
vient  d'etre  dit, 

soustrait  a  ses  engagements,  doit  restituer  a  Eden  les  2625  francs  qu'il 
avail  consent!  h  recevoirpour  remuneration  de  son  travail  avec  les  interets 
&  5  °/a  du  jour  du  versement,  qu'il  doit  etre  en  outre  condamn^  a  des 
dommages  et  interets  dont  le  montant  a  e>£  fix6  par  le  jugement  i  la  somme 
de  miUe  francs  ; 

Mais,  Conside'rant  que  les  premiers  juges  ont  a  tort  ordonn^  la  remise 
aux  mains  de  Eden  du  portrait  transform^  malicieiisement  par  Whistler 


PAR  CES 
MOTIFS 


par  le  motif  que  le  portrait  6ta.lt  la  proprie'te'  exclusive  de  Eden  et  qu' 
devait  lui  etrc  donne,  qu'enfin  1'engagement  intervenu  entre  les  parties  n' 
revetu  aucun  des  caracteres  de  la  vente,  mais  seulement  ceux  d'un 
obligation  de  faire,  dont  la  consequence  qui  en  d«!coulerait  serait  que  l 
portrait  dont  il  s'agit  n'ajamais  cesse  <fttre  la  proprUte"  de  f  artiste,  et  n 
saurait  des  lors  sortit  de  ses  mains,  malgre"  $a  volonte"; 

Mais  conside'rant  d'autre  part  que  ce  portrait  aujourd'hui  transform 
dans   sa  materialite"  n'en  conserve  pas  raoins  1'harmonie  gene'rale  qu 

1'artiste  avait 

payment ;   and  inasmuch  as  he  has  further  to  pay 


motifs  k  lui  fournis 

damages  to  the  amount  of  1000  francs  (£40) ; — 


But  inasmuch  as  the  Judges  of  the  lower  Court      d 

droit  de  proprie'te 

wrongfully  ordered  that   the  portrait   mischievously  SSS&fi1"8 

Ti-ri          i  11111  IT  -ni  sans  restriction  et 

altered  by  Whistler  should  be  handed  over  to  Eden,   sans  umite  et  de 

*  declarer  au  con- 

on  the  grounds  that  the  picture  was  the  exclusive   laTranTfoYmation0 

du  petit  tableau  ne 

property  of  Eden,  and  ought  to  be  given  up  to  him ;   |fn\Pfrac°^nd-lv 
and  inasmuch  as  the  agreement  between  the  parties  nTptirra^Se 

aucun  usage 

was  in  no  sense  a  contract  to  sell,  but  merely  an  obli-  public>  ni  priv<s 
gation  to  execute,  so  that  the  portrait  has  never  ceased 
to  be  the  artist's  property,  and  cannot  be  taken  from  him 
without  his  consent 

Inasmuch,  on  the  other  hand,  as  this  portrait, 
though  altered  in  some  essentials,  still  retains  the 
general  harmony  given  to  his  composition  by  the 
artist  with  the  help  of  certain  motives  furnished  by 
Lady  Eden,  and  that,  under  these  conditions,  it  seems 
evident  that  the  artist's  right  to  the  picture  is  not 
absolute,  without  limitation  or  restriction,  and  that, 
on  the  contrary,  so  long  as  the  transformation  of  the 
little  picture  is  not  complete,  Whistler  may  not  make 
any  use  of  it,  public  or  private 


Confirme  lejuge-  HEREBY 

ment  dont  est  appel 


confirms  the  judgment  against  which  appeal  is  made 

.  -  ,  •    i    r 

m  so  tar  as  it  set  rorth  the  material  tacts, 

And  confirms  it  in  ordering  the  appellant  to  refund 


1  appelant  £  resti- 
tuer  a  William  77 

Eden  les  2625  '  ' 

francs  que  celui-ci  avait  verse's  le  16  Fe>rier  1895,  avec  les  interets  a  5  % 
1'an,  k  partir  de  la  dite  e"poque,  et  a  payer  la  somme  de  mille  francs 
&  litre  de  dommages  et  inte>ets 

Dit  au  contraire  qu'il  a  M  inal  jug^  par  le  jugement  dont  est  appel, 
en  ce  qu'il  a  de'cide'  que  William  Eden  e"tait  devenu  proprictaire  du  por- 


trait  litigieux  du  moment  ou  les  parties  e'taint  tombe"es  daccord  sur  le 
prix  et  sur  la  chose 

Emendant,  et  re"formant  de  ce  chef,  statuant  &  nouveau,  dit,  en  droit, 
que  1'engagement  intervenu  entre  les  parties  etant  une  simple  obligation 
de  faire  se  re"solv- 

e^curiocn,sednin~      the  2625  francs  (100  guineas)  paid  him  by  William 

dommages  et  in-  . 

terets,  laisse         Eden,   with    five    per    cent,   interest  thereon  from 

*  artiste  mattte  tt  *  *• 

"  February  14,  1894,  and  to  pay   1000  francs  (£40) 
*  damages,  with  interest 
conslquenceen  But  rules  that   the   iudgment   was    at    fault  in 

Whistler  de  la  con- 

SSSffSJ^M     declaring  that  William  Eden  became  the   owner  of 

ordonnant  la 

wm^m  Ednendude  ^e  picture  as  soon   as   the  contracting  parties  had 
SSdiSequI11'   agreed  as  to  the  thing  and  the  price 

tant  que  sa  trans- 

paTc^mpifetVdr         Amending  this  clause  of  the  judgment,  and  pro- 

fac.on  i  le  rendre  .  PII-I/-N  TI  T 

livrabie,  whistler     nouncmg   atresh,    the   Court   declares    the   contract 

ne  pourra  en  faire 

publ  °  between  the  parties  to  have  been  merely  an  agreement 

ne  enfin  . 

re  ^°   execute,   resolving   itselt,    in    the  event  of  non- 


1c?atreeTrestaenutx       execution,  into  a  question  of  damages:  it  therefore 

h  la  charge  de 

^"rdo'nn^ndan-      leaves  the  artist  master  and  proprietor  of  his  work  till 

moins  la  restitution  7.  .        ^     -,-,       -,  i  •  77*  .  •»• 

de  ramende  con-  such  time  as  it  shall  please  film  to  deliver  it,  and  give  up 
the  holding  thereof 

It  discharges  Whistler  from  all  obligation  to  give 
up  the  portrait  to  William  Eden  laid  upon  him  by  the 
lower  Court,  but  declares,  on  the  other  hand,  that  so 
long  as  the  work  remains  incomplete,  and  unfit  to 
deliver,  Whistler  can  make  no  sort  of  use  of  it,  public 
or  private. 

It  orders  Whistler  to  pay  the  costs  of  the  first  suit, 
and  William  Eden  to  pay  costs  of  appeal. 

The  fine  to  be  refunded. 


RESUME 

PRESTIGE  OF  THE  WORK  OF  ART  AND  PRIVILEGE 
OF  THE  ARTIST— 

Established  :  The  ABSOLUTE  RIGHT  of  the  Artist  to 
control  the  destiny  of  his  handiwork — and,  at  all 
times,  and  in  all  circumstances,  to  refuse  its 
delivery  into  unseemly  and  ridiculous  keeping — 

The  DIVINE  RIGHT  of  the  Artist  to  pay 
damages,  and  so  rid  himself  cleanly  of  the  care 
lessly  incurred,  and  pertinaciously  unbecoming 
company  of  this  hereintofore  completely  discovered, 
penetrating  — persevering — planning  —  devising 
— Valentine  designing — pestilential,  and  entirely 
matagrabolising  personage  ! — 

Who  forthwith  empouches  the  gainings — 
unthinkingly,  unblushingly,  inevitably  !  —  and 
once  more  unwittingly  and  prodigiously  justifes 
the  judgment  ! — 


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